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Lalan Kumar vs The State Of Bihar on 8 April, 2017

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 11

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 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 12

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
Patna High Court CR. APP (SJ) No.151 of 2015 13

Valibhai 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 16

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:

“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 17

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 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 18

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 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 19

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 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 20

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 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 22

the 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 25

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 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 26

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 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 27

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 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 28

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 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 29

construe 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 30

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.

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 31

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.”

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 32

desperately 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 33

order 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 35

procedure 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 36

State 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 37

right 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 41

prejudice 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 42

the 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 43

1 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 44

offence 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 45

questions 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 46

accused-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 47

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 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 48

both 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 49

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

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 50

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

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 51

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

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 53

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 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 54

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

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 55

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

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 56

impervious 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 58

conducted 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 59

which 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 60

conception 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

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