Patna High Court CR. APP (SJ) No.151 of 2015 1
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (SJ) No.151 of 2015
Arising Out of PS.Case No. -97 Year- 2013 Thana -MAHILA PS District- JEHANABAD
Lalan Kumar, age 25 years, son of Ramanuj Yadav, resident of village-
Gulamichak, P.S. Kako, District Jehanabad
…. …. Appellant/s
Versus
The State of Bihar
…. …. Respondent/s
Appearance :
For the Appellant/s : Mr. S. K. Lal-Advocate
Mr. Raghvendra Pratap Singh-Advocate
Mr. Birendra Kumar-Advocate
For the Respondent/s : Mr. S. A. Ahmad-A.P.P.
CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI
CAV JUDGMENT
Date: 8-04-2017
Sole appellant, Lalan Kumar has been found guilty for an
offence punishable under Section 304B of the I.P.C. as well as
Section 201 of the I.P.C. and accordingly been sentenced to undergo
rigorous imprisonment for 10 years under Section 304B of I.P.C. and
rigorous imprisonment for three years under Section 201 of I.P.C. as
well as a composite fine appertaining to Rs.25,000/- has been inflicted
against both heads of conviction and in default thereof, to undergo S.I.
for three months additionally with a further direction to run the
sentences concurrently with a further event of set off against the
period already undergone during course of trial in terms of Section
428 of the Cr.P.C. by the Adhoc Additional Sessions Judge-1st,
Jehanabad vide judgment of conviction dated 12.02.2015 and order of
Patna High Court CR. APP (SJ) No.151 of 2015 2
sentence dated 20.02.2015 relating to Sessions Trial No.334 of 2014/
92 of 2014.
2. Suresh Yadav, PW-4, had filed written report on
14.11.2013 alleging inter alia that his third daughter Simpi Kumari
was married with Lalan Kumar (appellant), S/o Ramanuj Yadav of
village-Gulamichak in the month of Fagun in Year 2012 as per Hindu
rites and customs. At the time of marriage, he had gifted according to
his means. Soon after marriage, his daughter was being tortured by
her husband, Dewar, Bhainsur, Gotni, Sasur on the pretext of demand
of motorcycle and further, threatened that in case of non-availability
of the same, they will not allow her to stay at sasural and in the
aforesaid background, on 13.11.2013, his sister, who happens to be
married in Gulamichak itself has telephonically informed him that his
daughter Simpi Kumar has been murdered by her husband Lalan
Kumar, father in-law Ramanuj Yadav, Gotni Rinki Kumari, brother
in-law Raj Kishore Yadav, Bhainsur Lal Babu Yadav, Babu Chand
Yadav and wife of Babu Chand Yadav namely Gulabo Devi and
further, concealed the dead body. Soon after receiving aforesaid
information, he along with his family members came to Gulamichak
and found all the accused persons absent. Lock was hanging. They
made hectic effort to search out the dead body, but failed and on
account thereof, came to police station and informed the police. Then
thereafter, with the help of police personnel, the dead body of Simpi
Patna High Court CR. APP (SJ) No.151 of 2015 3
Kumari was traced out in the drain East to Chhotki Murari Village.
3. On the basis of the aforesaid written report, Jehanabad
Mahila P. S. Case No.97 of 2013 was registered under Section
304B/34 of the I.P.C. whereunder chargesheet was also submitted
against the appellant, who was apprehended, keeping the investigation
pending against others who were absconding and accordingly,
cognizance of the offences so indicated were taken facilitating the trial
which concluded in a manner, the subject matter of instant appeal.
4. Defence case as pleaded by the appellant as well as
statement recorded under Section 313 of the Cr.P.C. is that of
complete denial of occurrence. Furthermore, it has been pleaded that
deceased was of weak mental state and on account thereof, she used to
slip from the house and during course thereof, met with unfortunate
incidence and for that, none of them were responsible. Furthermore, it
has also been pleaded that family members of Naiharwala were
informed. They came and joined along with them in search of alleged
victim. After recovery of dead body, Naiharwala of deceased
demanded Rs. One Lac, which was declined on account thereof, this
false case has been registered. To substantiate the same, two DWs
have also been examined namely DW-1 Daroga Prasad and DW-2
Umesh Prasad.
5. In order to substantiate its case, the prosecution had
examined altogether six PWs, out of whom, PW-1 Rameshwar Yadav,
Patna High Court CR. APP (SJ) No.151 of 2015 4
PW-2 Pyari Devi, PW-3 Surendra Paswan, PW-4 Suresh Yadav, PW-
5 Dr. Dinesh Kumar and PW-6 Priti Kumar. Side by side, had also
exhibited the document as Exhibit-1 written report, Exhibit-2 F.S.L.
Report, Exhibit-3 post mortem report, Exhibit-4 endorsement over
written report, Exhibit-5 formal F.I.R. As stated above, two DWs have
been examined, however, no document has been exhibited from their
side.
6. While assailing the judgment of conviction and
sentence, it has been submitted on behalf of appellant that the learned
lower Court misread the evidences and on account thereof, did not
justify its finding. To substantiate the same, it has been submitted on
behalf of learned counsel for the appellant that for conviction under
the banner of dowry death, certain ingredients are to be fulfilled that
is:-
(a) the death should be within seven years of marriage, (b) death should be other
than the normal circumstance, ( c) there should be demand of dowry by husband
or his relative, (d) soon before her death the deceased was tortured with regard to
demand of dowry by her husband or his family members.
7. From the evidence on record, it is evident that apart
from exaggeration having from the initial version as is evident from
evidence of the PWs, the witnesses are completely silent over torture
inflicted upon the deceased soon before her death on account of
demand of dowry and so, the major ingredient for constituting the
Patna High Court CR. APP (SJ) No.151 of 2015 5
dowry death became absent. That being so, no offence under the
banner of dowry death could be attracted. In similar circumstance, on
account of absence of positive evidence to satisfy the death as a dowry
death, the presumption in terms of Section 113B of the Evidence Act
would not be attracted.
8. Learned counsel for the appellant also submitted that
while appreciating the evidence, the learned lower Court failed to
identify the aforesaid mandatory requirements of law. Although, those
requirements have been perceived under Para-16 of the judgment, but
failed to scrutinize the evidence on that very score. Consequent
thereupon, there happens to be serious lacuna persisting on the record
nullifying the legal propriety of the judgment impugned. Consequent
thereupon, the judgment impugned is fit to be set aside.
9. Furthermore, there happens to be complete silence at
the end of prosecution over delay in dispatching the F.I.R. to
Magistrate, as F.I.R. was registered on 15.11.2013 while it reached at
the Court on 18.11.2013, in utter violation of Section 157 Cr.P.C.,
although PW-5, I.O. in Para-16 was specifically cross-examined,
which probabilities the defence version regarding institution of instant
case in ante-dated manner, when appellant declined to accept demand
of prosecution, whereupon whole prosecution case is liable to be
rejected.
10. Apart from this, it has also been submitted that none
Patna High Court CR. APP (SJ) No.151 of 2015 6
of the co-villagers of the appellant, who could have been examined
during course of investigation, ought to be cited as chargesheet
witness, who could have divulged the actual affair contrary to it,
whoever been examined, are own kith kin. Therefore, evidence of
interested witness should not be accepted in symbolic manner, rather
should pass test of close scrutiny over reliability. The learned lower
Court completely by-passed the same during course of appreciation,
hence the judgment impugned suffers from serious legal infirmity.
Consequent thereupon, it fit to be set aside.
11. Furthermore, it has been submitted that once it is
found that no offence under Section 304-B of the I.P.C. is made out,
then in that event, no offence under Section 201 I.P.C. could be held
to be made out as in that event, there would not be an occasion to
conceal the dead body for screening themselves. Therefore, no
offence under Section 201 I.P.C. is found legally substantiated.
12. Per contra, it has been submitted on behalf of learned
Additional Public Prosecutor that after perceiving the necessary
ingredients for constituting a dowry death as well as concealing the
evidence, the learned lower Court had dealt with the evidences having
been adduced on behalf of prosecution in detail and on account
thereof, the finding recorded by the learned lower Court is fit to be
confirmed.
13. Though, during course of statement recorded under
Patna High Court CR. APP (SJ) No.151 of 2015 7
Section 313 Cr.P.C., the appellant alveate the situation, but by way of
examination of two DWs, apart from having been substantiated by the
PWs, has uncontroverted the issue regarding staying of deceased at
her sasural during fateful day, recovery of the dead body of Simpi
Kumari, from a drain, and further, marriage was solemnized just about
two-two and half years before the incidence. That means to say, death
within seven years of marriage as well as death otherwise than normal
circumstance goes out of controversy. However, it looks prudent to
identify the cause of death of deceased Simpi Kumari along with other
evidences.
14. From the evidence of Doctor, PW-5, it is evident that
he conducted post mortem over the dead body of Simpi Kumari on
14.11.2013 and found the following findings:-
(1) Rigor mourtis present
(2) Froth from nose and mouth
(3) No external injury present
On dissection- Heart both chamber full liver, spleen,
kidney, lungs are normal/ NAD. Stomach-some liquid timid
present. Urinary bladder empty.
Time of death- within 24 hours, cause of death-All viscera
preserved and final cause of death would be declared after
turmeric lab diagnosis.
Patna High Court CR. APP (SJ) No.151 of 2015 8
15. So, from his evidence, it is abundantly clear that
though no cause of death was identified by him, but time elapsed
since death happens to be within 24 hours. Post mortem was
conducted on 14.11.2013 at 4.30 p.m., hence death should have
occurred in between 13.11.2013 at 4.30 p.m. to 14.11.2013 at 4.30
p.m. approximately. As stated above, Doctor could not opine
regarding cause of death, as a result of which, viscera was sent for
chemical examination. F.S.L. Report happens to be Exhibit-2 under
Section 293 Cr.P.C. wherefrom it is evident that aluminum phosphate
commercially known as sulfas was found, which have been a grain
preservative as well as highly poisonous. That being so, the death
other than the normal circumstance is found duly substantiated.
16. Giving a pause before proceeding ahead, certain
salient features, which is visualizing after perusal of the L.C. Record
is also to be taken note of. From the format of the charge, it is evident
that neither same has been framed in accordance of Section 304B of
the I.P.C. nor, an alternative charge under Section 302 of the I.P.C. is
found. Charge is a major incident of the trial. Virtually, it happens to
be an accusation against an accused and further, acknowledging him
that he is going to be tried for the offences, which has been so alleged,
so that accused be in a position to properly defend the same.
Consequent thereupon, there should not be an ambiguity on that very
score. That means to say, written accusation specifying a definite
Patna High Court CR. APP (SJ) No.151 of 2015 9
criminal offence is of the essence of Criminal Procedure. Therefore,
all the ingredients based upon material facts which constitute an
offence must be stated in the charge. In sum and substance, a charge is
not an accusation in abstract, but a concrete accusation of an offence
alleged to have been committed by a person with an objective to
inform the accused on that very score, so that the accused be in a
position to defend the same. Though, in terms of Section 464 of the
Cr.P.C. any irregularity having on that very score, would not record
annulment of the finding of the Court, but that does not mean that
incompetency should be ignored. Moreover, when an accused had
faced trial, then in that event, the nature of accusation levelled by the
prosecution witnesses is found duly perceived by him, enabling the
accused to properly defend himself, and in the aforesaid background,
some sort of relaxation is found under Section 464 Cr.P.C.
17. Whether alternative charge when the matter relating
to dowry death comes for adjudication is to be framed or not has been
subject to consideration before the Hon’ble Apex Court in Rajvir
alias Raju and another vs. State of Haryana reported in (2010) 15
SCC 116 wherein it has been directed under:-
“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.
Patna High Court CR. APP (SJ) No.151 of 2015 10
Copy of this order be sent to Registrar
Generals/Registrars of all High Courts, which will
circulate it to all trial Courts.”
18. The aforesaid pronouncement came under
consideration in Jasvinder Saini others v. State (Government of
NCT of Delhi) reported in (2013) 7 SCC 256, wherein it has been
held:-
“14. Be that as it may the common thread
running through both the orders is that this
Court had in Rajbir‟s case (2010)15 SCC
116 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 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
Patna High Court CR. APP (SJ) No.151 of 2015 11Section 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 perspective relevant to such ingredients.
The trial Court in that view of the matter
acted mechanically for it framed an
Patna High Court CR. APP (SJ) No.151 of 2015 12additional 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
Patna High Court CR. APP (SJ) No.151 of 2015 13Valibhai Qureshi v. State of Gujarat and
Ors. (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.
19. In Vijay Pal Singh and others vs. State of
Patna High Court CR. APP (SJ) No.151 of 2015 14
Uttarakhand reported in (2014) 15 SCC 163, it has been held:-
“18. However, it is generally seen that in cases
where 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:
Patna High Court CR. APP (SJ) No.151 of 2015 15
“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 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
Patna High Court CR. APP (SJ) No.151 of 2015 16they 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:
“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
Patna High Court CR. APP (SJ) No.151 of 2015 17appreciation 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 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
Patna High Court CR. APP (SJ) No.151 of 2015 18cannot 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 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
Patna High Court CR. APP (SJ) No.151 of 2015 19easy 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 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
Patna High Court CR. APP (SJ) No.151 of 2015 20death. 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 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. …”
20. From the aforesaid citations, it is manifest that in
Rajdev Singh Case, the Hon’ble Apex Court had directed to frame
charge of murder in an alternative with regard to the offences
attracting dowry death invariably, which is found properly explained
in Jasvinder Saini Case (Supra). However, the intention of the
Hon’ble Apex Court happens to be not that there should not be a
charge under Section 302 of the I.P.C. rather the Court has been
entrusted to perceive from the materials available on the record to find
out whether alternative charge is warranted or not and if so, was very
much permissible.
21. In the present context, it would be better to
incorporate relevant Sections i.e. 227 and 228 of the Cr.P.C. which
Patna High Court CR. APP (SJ) No.151 of 2015 21
deals with the event of framing of charge before the Court of
Sessions:-
“227.Discharge.-
If, upon consideration of the record of the case and the
documents submitted therewith, and after hearing the
submissions of the accused and the prosecution in this
behalf, the Judge considers that there is not sufficient
ground for proceeding against the accused, he shall
discharge the accused and record his reasons for so doing.
228.Framing of charge.-
(1) If, after such consideration and hearing as aforesaid,
the Judge, is of opinion that there is ground for presuming
that the accused has committed an offence which –
(a) is not exclusively triable by the Court of Session,
he may, frame a charge against the accused and, by
order, transfer the case for trial to the Chief
Judicial Magistrate, and thereupon the Chief
Judicial Magistrate shall try the offence in
accordance with the procedure for the trial of
warrant-cases instituted on a police report;
(b) is exclusively triable by the Court, he shall
frame in writing a charge against the accused.
(2) Where the Judge frames any charge under clause (b) of
sub-section (1), the charge shall be read and explained to
Patna High Court CR. APP (SJ) No.151 of 2015 22the accused and the accused shall be asked whether he
pleads guilty of the offence charged or claims to be tried.”
22. Considering the prospect of relevant provisions of
law as well as principle enunciated by the Hon’ble Apex Court, as
referred above, it happens to be incumbent upon the trial court to look
into the materials having available on the record in order to search and
whether charge under Section 304-B I.P.C. is attracted or fragrance of
Section 302 I.P.C. is also being felt. The order dated 08.08.2014
passed by the lower Court has been gone through, it is apparent that
no such exercise was ever adopted. In other words, the process
followed by the lower Court at the relevant stage was not judicious
rather mechanical by observing that “charge has been framed against
the accused for an offences punishable under Section 304B, 201 of
I.P.C., which has been read over to the accused in Hindi which he
does not plead guilty and on account thereof, claimed to be tried.” The
aforesaid order dated 08.08.2014, is completely silent over the activity
taken up in pursuance of direction of the Hon’ble Apex Court coupled
with the fact that the learned lower Court had also failed to look into
the material having on the record. It is needless to say that trial Court
has got power to amend the charge up till pronouncement of judgment
and further, giving an opportunity to the accused in appropriate case,
in terms of Section 217 of Cr.P.C., however is found washed away.
Furthermore, the Appellate Court has got power to correct error or
Patna High Court CR. APP (SJ) No.151 of 2015 23
omission in charge as has been observed by the Hon’ble Apex Court
in State of Karnataka v. Kumari Gowri Narayana Ambiga Etc.
reported in (1995) 2 SCR 1135, but such exercise is to be seen in the
background of Section 216 as well as Section 217 of the Cr.P.C. and
in case, the opportunity to accused is found appropriate, then in that
event, it will be a Herculean task to the Appellate Court by way of
keeping appeal pending for years together and allowing the learned
lower Court to proceed and then, receive the evidence, with a
direction to transmit the same, which will ultimately be a guiding
factor for passing judgment, away from whatever been adjudicated
upon by the lower Court, a worthless, fragile event. Furthermore, the
whole exercise, as it depicts, will not be under garb of Section 391
Cr.P.C. by way of collecting additional evidence rather it will be
under banner of Section 216, 217 Cr.P.C. whereunder an accused has
absolute right to ask for summon to witnesses already examined for
cross-examination on account of addition of charge.
23. While dealing with the power of the Appellate
Court so vested under Section 386 of the Cr.P.C., apart from others,
retrial has also been vested without having any kind of classification
and so, it happens to be within the wisdom of the Appellate Court to
perceive the nature of the proceeding having conducted by the learned
lower Court and would direct in appropriate cases, for retrial.
Basically retrial is warranted when there happens to be glaring legal
Patna High Court CR. APP (SJ) No.151 of 2015 24
defect of a serious nature which has resulted in grave failure of
justice. Furthermore, on account of lapses on the part of the lower
Court, there should be some violation of fundamental principle of law
during course of trial which the Appellate Court perceived and on
account thereof, an order for retrial could be granted. So, in sum and
substance for the purpose of directing to retrial by the Appellate
Court, there should be some glaring defects in the procedure or there
should be manifest error on a point of law and consequent thereupon,
has been a flagrant miscarriage of justice.
24. Question of retrial has come up before the
Constitution Bench of the Hon’ble Apex Court in Ukha Kolhe-
Appellant v. the State of Maharashtra-Respondent reported in A.I.R.
1963 (SC) 1531 wherein the majority view has held:-
“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
Patna High Court CR. APP (SJ) No.151 of 2015 25the 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 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
Patna High Court CR. APP (SJ) No.151 of 2015 26to 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 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.
25. The aforesaid ratio has further been magnified in
Rajeswar Prasad Misra, 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
Patna High Court CR. APP (SJ) No.151 of 2015 27Court 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 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
Patna High Court CR. APP (SJ) No.151 of 2015 28of 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 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 and
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
Patna High Court CR. APP (SJ) No.151 of 2015 29construe one section with the aid of observations
made by this Court in the interpretation of the other
section.
26. In Ajay Kumar Ghoshal and others vs. State of
Bihar and another reported in 2017(1) P.L.J.R. 458 (SC), it has been
observed:-
“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 (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
Patna High Court CR. APP (SJ) No.151 of 2015 30trial 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.
12. „De novo‟ trial means a “new trial” ordered by
an appellate court in exceptional cases when the
original trial failed to make a determination in a
manner dictated by law. The trial is conducted
afresh by the court as if there had not been a trial in
first instance. Undoubtedly, the appellate court has
power to direct the lower court to hold „de novo‟
trial. But the question is when such power should be
exercised. As stated in Pandit Ukha Kolhe vs. State
of Maharashtra (1964) SCR 926, the Court held
that: “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
Patna High Court CR. APP (SJ) No.151 of 2015 31nature 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.”
13. This Court, while dealing with the question
whether the High Court should have quashed the
trial proceedings only on account of declaration of
the legal position made by the Supreme Court
concerning the procedural aspect about the cases
involving offences under the SC/ST Act, this Court
stated, “a de novo trial should be the last resort and
that too only when such a course becomes so
Patna High Court CR. APP (SJ) No.151 of 2015 32desperately indispensable; it should be limited to
the extreme exigency to avert „a failure of justice‟.
Observing that any omission or even the illegality
in the procedure which does not affect the core of
the case is not a ground for ordering a de novo
trial”. In State of M.P. vs. Bhooraji and Ors. (2001)
7 SCC 679, the Court went on to say further as
follows:
“8….This is because the appellate court has
plenary powers for revaluating and reappraising
the evidence and even to take additional evidence
by the appellate court itself or to direct such
additional evidence to be collected by the trial
court. But to replay the whole laborious exercise
after erasing the bulky records relating to the
earlier proceedings, by bringing down all the
persons to the court once again for repeating the
whole depositions would be a sheer waste of time,
energy and costs unless there is miscarriage of
justice otherwise. Hence, the said course can be
resorted to when it becomes unpreventable for the
purpose of averting “a failure of justice”. The
superior court which orders a de novo trial cannot
afford to overlook the realities and the serious
impact on the pending cases in trial courts which
are crammed with dockets, and how much that
Patna High Court CR. APP (SJ) No.151 of 2015 33order would inflict hardship on many innocent
persons who once took all the trouble to reach the
court and deposed their versions in the very same
case. To them and the public the re-enactment of
the whole labour might give the impression that law
is more pedantic than pragmatic. Law is not an
instrument to be used for inflicting sufferings on the
people but for the process of justice dispensation.”
14. In Bhooraji‟s case, the Court referred to
Chapter XXXV of the Code and, particularly,
Sections 461, 462 and 465 (1). After noticing the
above provisions, the Court observed in paragraphs
(15) and (16) of the order as follows:
“15. A reading of the section makes it clear that the
error, omission or irregularity in the proceedings
held before or during the trial or in any enquiry
were reckoned by the legislature as possible
occurrences in criminal courts. Yet the legislature
disfavoured axing down the proceedings or to direct
repetition of the whole proceedings afresh. Hence,
the legislature imposed a prohibition that unless
such error, omission or irregularity has occasioned
“a failure of justice” the superior court shall not
quash the proceedings merely on the ground of such
error, omission or irregularity.
Patna High Court CR. APP (SJ) No.151 of 2015 34
16. What is meant by a failure of justice occasioned
on account of such error, omission or irregularity?
This Court has observed in Shamnsaheb M.
Multtani vs. State of Karnataka {2001 (2) SCC 577}
thus:
“23. We often hear about failure of justice and
quite often the submission in a criminal court is
accentuated with the said expression. Perhaps it is
too pliable or facile an expression which could be
fitted in any situation of a case. The expression
failure of justice would appear, sometimes, as an
etymological chameleon (the simile is borrowed
from Lord Diplock in Town Investments Ltd. v.
Deptt. of the Environment, 1977 (1) All E.R. 813).
The criminal court, particularly the superior court
should make a close examination to ascertain
whether there was really a failure of justice or
whether it is only a camouflage.”
15. In Gopi Chand vs. Delhi Administration AIR
1959 SC 609, a Constitution Bench of this Court
was concerned with the criminal appeals wherein
plea of the validity of the trial and of the orders of
conviction and sentence was raised by the
appellant. That was a case where the appellant was
charged for three offences which were required to
be tried as a warrant case by following the
Patna High Court CR. APP (SJ) No.151 of 2015 35procedure prescribed in the Code of Criminal
Procedure, 1860 but he was tried under the
procedure prescribed for the trial of a summons
case. The procedure for summons case and
warrants case was materially different. The
Constitution Bench held that having regard to the
nature of the charges framed and the character and
volume of evidence led, the appellant was
prejudiced; accordingly, set aside the orders of
conviction and sentence and the Constitution Bench
held as under:-
“29. ….the offences with which the Appellant stands
charged are of a very serious nature; and though it
is true that he has had to undergo the ordeal of a
trial and has suffered rigorous imprisonment for
some time that would not justify his prayer that we
should not order his retrial. In our opinion, having
regard to the gravity of the offences charged
against the Appellant, the ends of justice require
that we should direct that he should be tried for the
said offences de novo according to law. We also
direct that the proceedings to be taken against the
Appellant hereafter should be commenced without
delay and should be disposed as expeditiously as
possible.”
16. In Zahira Habibulla H. Sheikh and Anr. vs.
Patna High Court CR. APP (SJ) No.151 of 2015 36State of Gujarat and Ors. (2004) 4 SCC 158, [Best
Bakery case] being an extraordinary case, the
Supreme Court was convinced that the witnesses
were threatened to keep themselves away from the
Court and in such facts and circumstances of the
case, not only the Court directed a „de novo‟ trial
but made further direction for appointment of the
new prosecutor and retrial was directed to be held
out of the State of Gujarat. The law laid down in
Best Bakery case for retrial was in the
extraordinary circumstances and cannot be applied
for all cases.
17. After considering the question a “speedy trial”
and “fair trial” to a person accused of a crime and
after referring to a catena of decisions and
observing that guiding factor for retrial must
always be demand of justice, in Mohd. Hussain @
Julfikar Ali vs. State (Govt. of NCT of Delhi) (2012)
9 SCC 408, this Court held as under:-
“41. „Speedy trial‟ and „fair trial‟ to a person
accused of a crime are integral part of Article 21.
There is, however, qualitative difference between
the right to speedy trial and the accused‟s right of
fair trial. Unlike the accused‟s right of fair trial,
deprivation of the right to speedy trial does not per
se prejudice the accused in defending himself. The
Patna High Court CR. APP (SJ) No.151 of 2015 37right to speedy trial is in its very nature relative. It
depends upon diverse circumstances. Each case of
delay in conclusion of a criminal trial has to be
seen in the facts and circumstances of such case.
Mere lapse of several years since the
commencement of prosecution by itself may not
justify the discontinuance of prosecution or
dismissal of indictment. The factors concerning the
accused‟s right to speedy trial have to be weighed
vis-à-vis the impact of the crime on society and the
confidence of the people in judicial system. Speedy
trial secures rights to an accused but it does not
preclude the rights of public justice. The nature and
gravity of crime, persons involved, social impact
and societal needs must be weighed along with the
right of an accused to speedy trial and if the
balance tilts in favour of the former the long delay
in conclusion of criminal trial should not operate
against the continuation of prosecution and if the
right of accused in the facts and circumstances of
the case and exigencies of situation tilts the balance
in his favour, the prosecution may be brought to an
end. These principles must apply as well when the
appeal court is confronted with the question
whether or not retrial of an accused should be
ordered.
Patna High Court CR. APP (SJ) No.151 of 2015 38
42. The appellate court hearing a criminal appeal
from a judgment of conviction has power to order
the retrial of the accused under Section 386 of the
Code. That is clear from the bare language of
Section 386(b). Though such power exists, it should
not be exercised in a routine manner. A „de novo
trial‟ or retrial is not the second trial; it is
continuation of the same trial and same
prosecution. The guiding factor for retrial must
always be demand of justice. Obviously, the
exercise of power of retrial under Section 386(b) of
the Code, will depend on the facts and
circumstances of each case for which no strait
jacket formula can be formulated but the appeal
court must closely keep in view that while
protecting the right of an accused to fair trial and
due process, the people who seek protection of law
do not lose hope in legal system and the interests of
the society are not altogether overlooked.”
27. Then thereafter, coming to another event, it is
evident from the statement of accused recorded under Section 313
Cr.P.C., that the learned lower Court was very much confused as,
instead of collecting incriminating materials available on record,
against the appellant, and further confronting the same to the accused
(appellant), the lower Court, proceeded to record statement under
Patna High Court CR. APP (SJ) No.151 of 2015 39
casual manner. Although, as perceived, the judgment impugned did not deal
with the parallel scrutiny of the material to trace out whether it happens to be a
murder trial or dowry death trial and further, whether charge was needed to be
amended on that score and in likewise manner, the event of statement recorded
under Section 313 Cr.P.C. For better appreciation, same is quoted below in
verbatim:-
Q. Kya Aapne Gawahon ki Gawahi Suna hai?
A. Ji Han.
Q. Aapke Virudh Sachya hai ki Aapki Shadi Sipi
Kumari ke sath do warsh purv 2012 me hui thi. 13.11.2013 ke raat
me hatya kar diya?
A. Ji nahi.
Q. Aapke virudh sachya hai ki roshgaddi me
dubara gai to 50,000/- rupya avam motorcycle ki mang karte the
nahi dene par jahar pilakar hatya kar diya?
A. Ji nahi.
Q. Aapke virudh yah bhi sachya hai ki aapki patni
ki mirtyu jahar pilane ke karan hui?
A. Ji nahi.
Q. Aapke virudh yah bhi sachya hai ki aapki patni
ka lash murari pain se baramad hua jo mitti me chhipakar rakha
tha aur ladki ke pita ko khabar bhi nahi kiya. Kya kahna hai?
A. Ji nahi main ladki ke pita ko khabar kiya tha.
Q. Aapke virudh sachya hai ki jab Sipi ke pita
aapke ghar aai to aaplog sabhi farar the. Kya kahna hai?
A. Ji nahi Main ghar par tha.
Q. Safai me kya kahna hai?
Patna High Court CR. APP (SJ) No.151 of 2015 40
A. Meri Patni dimag se kamjor thi. Ghar se chali
gayee thi.
28. That being so, it is abundantly clear that the learned
lower Court virtually frustrated the purpose of the recording statement
under Section 313 Cr.P.C. and that being so, the same suffers from
deficiency. The Apex Court, confronted with such situation, while
remitting the matter to lower Court, in Nar Singh vs. State of
Haryana reported in (2015) 1 SCC 496 has observed:-
“30. Whenever a plea of omission to put a question
to the accused on vital piece of evidence is raised in
the appellate court, courses available to the
appellate court can be briefly summarised as
under:-
30.1. Whenever a plea of non-compliance of Section
313 Cr.P.C. is raised, it is within the powers of the
appellate court to examine and further examine the
convict or the counsel appearing for the accused
and the said answers shall be taken into
consideration for deciding the matter. If the
accused is unable to offer the appellate court any
reasonable explanation of such circumstance, the
court may assume that the accused has no
acceptable explanation to offer;
30.2 In the facts and circumstances of the case, if
the appellate court comes to the conclusion that no
Patna High Court CR. APP (SJ) No.151 of 2015 41prejudice was caused or no failure of justice was
occasioned, the appellate court will hear and
decide the matter upon merits.
30.3. If the appellate court is of the opinion that
non-compliance with the provisions of Section 313
Cr.P.C. has occasioned or is likely to have
occasioned prejudice to the accused, the appellate
court may direct retrial from the stage of recording
the statements of the accused from the point where
the irregularity occurred, that is, from the stage of
questioning the accused under Section 313 Cr.P.C.
and the trial Judge may be directed to examine the
accused afresh and defence witness if any and
dispose of the matter afresh;
30.4 The appellate court may decline to remit the
matter to the trial court for retrial on account of
long time already spent in the trial of the case and
the period of sentence already undergone by the
convict and in the facts and circumstances of the
case, may decide the appeal on its own merits,
keeping in view the prejudice caused to the accused.
31. On the question of remitting the matter back to
the trial court on the ground of non-compliance of
mandatory provisions of Section 313 Cr.P.C.,
learned counsel for the appellant contended that in
Patna High Court CR. APP (SJ) No.151 of 2015 42the present case, the accused is in custody for more
than eight years and the accused person cannot be
kept under trial indefinitely and that the accused
has a right to speedy trial. The learned counsel
placed reliance upon the judgment of this Court in
Abdul Rehman Antulay And Ors. vs. R.S. Nayak
And Anr., (1992) 1 SCC 225. In paras (63) and (64)
of the said judgment it was held as under:-
“63. In Machander v. State of Hyderabad (1955) 2
SCR 524 this Court observed that while it is
incumbent on the Court to see that no guilty persons
escapes, it is still more its duty to see that justice is
not delayed and accused persons are not
indefinitely harassed. The scales, the Court
observed, must be held even between the
prosecution and the accused. In the facts of that
case, the Court refused to order trial on account of
the time already spent and other relevant
circumstances of that case.
64. In Veerabadran Chettiar v. Ramaswami Naicker
(1959) SCR 1211 this Court refused to send back
proceedings on the ground that already a period of
five years has elapsed and it would not be just and
proper in the circumstances of the case to continue
the proceedings after such a lapse of time.
Similarly, in Chajoo Ram v. Radhey Shyam ((1971)
Patna High Court CR. APP (SJ) No.151 of 2015 431 SCC 774 the Court refused to direct a re-trial
after a period of 10 years having regard to the facts
and circumstances of the case. In State of U.P. v.
Kapil Deo Shukla ((1972) 3 SCC 504, though the
Court found the acquittal of the accused
unsustainable, it refused to order a remand or
direct a trial after a lapse of 20 years”.
32. While we are of the view that the matter has to
be remitted to the trial court for proceeding afresh
from the stage of Section 313 Cr.P.C. questioning,
we are not oblivious of the right of the accused to
speedy trial and that the courts are to ensure speedy
justice to the accused. While it is incumbent upon
the Court to see that persons accused of crime must
be given a fair trial and get speedy justice, in our
view, every reasonable latitude must be given to
those who are entrusted with administration of
justice. In the facts and circumstances of each case,
court should examine whether remand of the matter
to the trial court would amount to indefinite
harassment of the accused. When there is omission
to put material evidence to the accused in the
course of examination under Section 313 Cr.P.C.,
prosecution is not guilty of not adducing or
suppressing such evidence; it is only the failure on
the part of the learned trial court. The victim of the
Patna High Court CR. APP (SJ) No.151 of 2015 44offence or the accused should not suffer for laches
or omission of the court. Criminal justice is not
one- sided. It has many facets and we have to draw
a balance between conflicting rights and duties.
33. Coming to the facts of this case, FSL Report
(Ex-P12) was relied upon both by the trial court as
well as by the High Court. The objection as to the
defective 313 Cr.P.C. statement has not been raised
in the trial court or in the High Court and the
omission to put the question under Section 313
Cr.P.C., and prejudice caused to the accused is
raised before this Court for the first time. It was
brought to our notice that the appellant is in
custody for about eight years. While the right of the
accused to speedy trial is a valuable one, Court has
to subserve the interest of justice keeping in view
the right of the victim‟s family and the society at
large.
34. In our view, accused is not entitled for acquittal
on the ground of non-compliance of mandatory
provisions of Section 313 Cr.P.C. We agree to some
extent that the appellant is prejudiced on account of
omission to put the question as to the opinion of
Ballistic Expert (Ex- P12) which was relied upon by
the trial court as well as by the High Court. Trial
court should have been more careful in framing the
Patna High Court CR. APP (SJ) No.151 of 2015 45questions and in ensuring that all material evidence
and incriminating circumstances were put to the
accused. However, omission on the part of the
Court to put questions under Section 313 Cr.P.C.
cannot enure to the benefit of the accused.”
29.Same view also been held in Jai Sao @ Ajay Sao vs.
the State of Bihar reported in 2016(3) P.L.J.R. 441 wherein it has
been held:-
“13. In the case at hand, the incriminating
circumstances, spoken to by each prosecution
witness, on which the learned trial Court has relied
upon, ought to have been put to the accused-
appellant, when he was being examined under
Section 313 (1) (b) of the Code of Criminal
Procedure and the same having not been done,
learned trial Court ought not to have based its
findings on such incriminating pieces of evidence.
In fact, it appears to us that the learned trial Court
had not put to the accused-appellant, in the present
case, even the sum-total of the prosecution’s case,
which, in our considered view, does not satisfy the
requirements of law.
14. Situated thus, one has no option but to conclude
that if the accused-appellant is not examined under
Section 313(1)(b) of the Code of Criminal
Procedure as warranted by law, it will deny to the
Patna High Court CR. APP (SJ) No.151 of 2015 46accused-appellant a valuable right vested in him by
law to properly and effectively project his defence.
At the same time, prosecution, to our mind, cannot
be made to suffer solely for the lapse on the part of
the learned trial Court in properly examining the
accused-appellant under Section 313(1)(b) of the
Code of Criminal Procedure. We are, therefore,
clearly of the view, if we may reiterate, that this
case needs to be remanded to the learned trial
Court.”
30. Coming to the conduct of a Judge while presiding
over a trial, it could be summarized as, being cautious, alert, sensitize
and further, would always endeavour to dispense with fair justice.
31. In Pooja Pal v. Union of India and others reported
in (2016) 3 SCC 135, it has been held:-
“53. This Court in the above disquieting backdrop
Zahira Habibulla (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
Patna High Court CR. APP (SJ) No.151 of 2015 47too 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 Zahira Habibulla (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 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
Patna High Court CR. APP (SJ) No.151 of 2015 48both to the parties and to the community.
55. In Zahira Habibulla (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 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:(Zahira
Habibulla Case (2004)4 SCC 158 ,SCC pp.187-88)
“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
Patna High Court CR. APP (SJ) No.151 of 2015 49ears 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
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
Patna High Court CR. APP (SJ) No.151 of 2015 50by 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
any fear of being haunted by those against whom he
has deposed.” (emphasis supplied)
57. It was underlined in Zahira Habibulla 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
Patna High Court CR. APP (SJ) No.151 of 2015 51ought 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
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.”
Patna High Court CR. APP (SJ) No.151 of 2015 52
58. It was declared in Zahira Habibulla 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
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
Patna High Court CR. APP (SJ) No.151 of 2015 53to 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 Zahira Habibulla
case (2004)4 SCC 158 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 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
Patna High Court CR. APP (SJ) No.151 of 2015 54such 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
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
Patna High Court CR. APP (SJ) No.151 of 2015 55its 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
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).
32. In Vinod Kumar v. 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
Patna High Court CR. APP (SJ) No.151 of 2015 56impervious to the cry of the collective asking for
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.?
33. In Rattiram and others v. State of Madhya Pradesh
through Inspector of Police with Satyanarayan and others v. State of
Madhya Pradesh through Incharge, Police Station Cantonment 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.
……………………………………………………………
…………………………………………………………….
Patna High Court CR. APP (SJ) No.151 of 2015 57
62. We have referred to the aforesaid authorities to
illumine and elucidate that the delay in conclusion
of trial has a direct nexus with the collective cry of
the society and the anguish and agony of an
accused (quaere a victim). Decidedly, there has to
be a fair trial and no miscarriage of justice and
under no circumstances, prejudice should be caused
to the accused but, a pregnant one, every
procedural lapse or every interdict that has been
acceded to and not objected at the appropriate
stage would not get the trial dented or make it
unfair. Treating it to be unfair would amount to an
undesirable state of pink of perfection in procedure.
An absolute apple pie order in carrying out the
adjective law, would only be sound and fury
signifying nothing.
34. In J. Jayalalithaa and others v. State of Karnataka
and others reported in (2014) 2 SCC 401, it has been held:-
“29. Denial of a fair trial is as much injustice to the
accused as is to the victim and the society. It
necessarily requires a trial before an impartial
judge, a fair prosecutor and an atmosphere of
judicial calm. Since the object of the trial is to mete
out justice and to convict the guilty and protect the
innocent, the trial should be a search for the truth
and not a bout over technicalities and must be
Patna High Court CR. APP (SJ) No.151 of 2015 58conducted under such rules as will protect the
innocent and punish the guilty. Justice should not
only be done but should be seem to have been done.
Therefore, free and fair trial is a sine qua non of
Article 21 of the Constitution. Right to get a fair
trial is not only a basic fundamental right but a
human right also. Therefore, any hindrance in a
fair trial could be violative of Article 14 of the
Constitution. “No trial can be allowed to prolong
indefinitely due to the lethargy of the prosecuting
agency or the State machinery and that is the raison
d‟etre in prescribing the time frame” for conclusion
of the trial.
35. In Bablu Kumar and others v. State of Bihar and
another reported in (2015) 8 SCC 787, it has been held:-
“22. Keeping in view the concept of fair trial, the
obligation of the prosecution, the interest of the
community and the duty of the Court, it can
irrefragably be stated that the Court cannot be a
silent spectator or a mute observer when it presides
over a trial. It is the duty of the court, to see that
neither the prosecution nor the accused play
truancy with the criminal trial or corrode the
sanctity of the proceeding. They cannot expropriate
or hijack the community interest by conducting
themselves in such a manner as a consequence of
Patna High Court CR. APP (SJ) No.151 of 2015 59which the trial becomes a farcical one. Law does
not countenance a ‘mock trial’. It is a serious
concern of the society. Every member of the
collective has an inherent interest in such a trial.
No one can be allowed to create a dent in the same.
The court is duty bound to see that neither the
prosecution nor the defence takes unnecessary
adjournments and take the trial under their control.
The court is under the legal obligation to see that
the witnesses who have been cited by the
prosecution are produced by it or if summons are
issued, they are actually served on the witnesses. If
the court is of the opinion that the material
witnesses have not been examined, it should not
allow the prosecution to close the evidence. There
can be no doubt that the prosecution may not
examine all the material witnesses but that does not
necessarily mean that the prosecution can choose
not to examine any witness and convey to the court
that it does not intend to cite the witnesses. The
Public Prosecutor who conducts the trial, has a
statutory duty to perform. He cannot afford to take
things in a light manner. The Court also is not
expected to accept the version of the prosecution as
if it is sacred. It has to apply its mind on every
occasion. Non-application of mind by the trial court
has the potentiality to lead to the paralysis of the
Patna High Court CR. APP (SJ) No.151 of 2015 60conception of fair trial.”
36. After having holistic approach over the materials
available on the record, it is evident that the learned lower Court was
non-sensitized towards the legal proposition and on account thereof,
the conduction of the trial is found suffering from grave legal defect
causing miscarriage of justice and on account thereof, its ultimate
result is fit to be set aside and is accordingly set aside. Appeal is
allowed. Matter is remitted back to the learned lower Court to proceed
afresh and conclude the trial in accordance with law within six months
from the date of receipt of the L.C. Record in light of observation
made hereinabove. Appellant is under custody, on account thereof,
will remain till further order, if any, passed by the lower Court. It is
made clear that no finding has been recorded on merit of the case.
37. Office is directed to transmit the L. C. Record to the
learned lower Court at once.
(Aditya Kumar Trivedi, J)
Vikash/-
AFR/NAFR A.F.R.
CAV DATE 13.02.2017
Uploading Date 10.04.2017
Transmission 10.04.2017
Date