State of H.P. vs Kaam Raj and others

Dev Darshan Sud, J.—This appeal has been preferred by the State against the judgment passed by the learned Sessions Judge, Hamirpur, acquitting the respondents for offences under Sections 498-A, 306 read with Section 34 I.P.C. Respondent Whether reporters of the Local papers are allowed to see the judgment.yes. No.1 Kaam Raj is the son of Har Parkash respondent No.2 and respondent No.3 Bimla Devi is the mother of respondent No.1

The prosecution case in brief is that Rachna Devi deceased was the daughter of PW1 Braham Dass. Accused respondent No.1 was employed in a factory at Ludhiana as a fitter. He was married to the deceased in the year 1996 according to Hindu rites and customs. The allegation against the respondents was that after the wedding, her mother-in-law Bimla Devi, father-in-law Har Parkash and Kaam Raj used to beat her up and abuse her. Fed up with this behaviour, she went to Ludhiana with her husband accused respondent No.1 in the year 1996 and stayed there for about one month. Whenever she used to visit her parents, she used to complain to her father and mother that her in-laws and husband harassed and subjected her to cruel treatment. As a result, 5/6 months prior to the incident, she had consumed some poisonous medicine but survived. Again in the month of November 1997, her husband took her to Ludhiana where they stayed for about one and half months. Thereafter, she and her husband visited her parents and on the next day, they left for the village of the respondents. Two days thereafter, the in-laws of the deceased met PW1 Braham Dass in his house and informed him that the deceased should stay with him and they would take her back after Lohari, but Rachna Devi refused to do so and went to her in-laws. Respondent No.1 husband wanted to divorce her because he suspected that she was writing love letters to some person and he also started harassing/torturing her. On 13.1.1998 in the evening, he received information by telephone that Rachna Devi had gone to visit her sister Bhagwati Devi (PW2) where she was taken seriously ill. At night he along with up-pradhan Amar Nath rushed to village Ghandoli where he found that in the evening at around 4 p.m., the deceased and accused respondent No.1 Kaam Raj were visiting Bhagwati Devi (PW2). At that time, Rachna was walking unsteadily. Both had taken some water and tea thereafter. He concludes by saying that she was tortured and tormented for the reason that she could not bear any child.

On 14.1.1998, PW11 S.H.O. Jai Chand, Police Station, Barsar visited the house of the accused where her dead body was lying. He prepared inquest report Ext.PW11/B and Ext.PW11/C and photographs Ext.P5 to Ext.P-8 taken as a part of the record. He also recorded Ext.PA statement of Braham Dass and this was the basis for registration of the F.I.R. On the evidence on record, the learned Sessions Judge holds that Ext PA was the basis of the entire case in which PW1 Braham Dass stated that the deceased was under the influence of some evil spirit and remained depressed. She was melancholic because she was not bearing any child. He has made general allegations regarding cruel treatment etc.

PW2 Bhagwati Devi, the elder sister of the deceased stated that the deceased had been visiting Ludhiana etc. where her husband was working as a Fitter. She went there 3/4 times. She stated that the accused used to beat her up, abuse and maltreat her. She had counseled the deceased that she should not leave the house of her husband. She then says that the deceased told her that her mother-in-law used to say that the deceased could not bear any child and used to beat her up on that count also and for this reason they wanted to get Kaam Raj remarried. On 10.1.1998 Kaam Raj accused respondent No.1 had telephoned and asked PW2 Bhagwati Devi to visit Paplah to meet the deceased. Accordingly she went there and invited them to visit her on Lohari. On 13.1.1998 at around 4 p.m, the deceased came to her house. At that time, she was in the court-yard. When she entered the house, she found her sister dead. Accused Kaam Raj did not allow her to touch Rachna Devi saying that she was in some kind of mental depression. At around 7 p.m., she informed her father regarding Rachana''s death. She states in her cross-examination that she had not actually seen the accused maltreating, taunting or beating her but whenever the deceased Rachna Devi met her she used to go into a state of depression. She states that the poison was administered to the deceased in tea by her mother-in-law. She denied any suggestion that she engaged in any conversation with the deceased or accused respondent No.1 Kaam Raj.

PW3 Mansa Devi is a neighbour, who states that there was discord between the accused persons and Rachna Devi. This fact was also disclosed to her by the deceased. PW4 Devki Devi is another neighbour of the accused, who says that whenever Rachna Devi met her she used to weep which she interpreted to mean that she was being beaten and maltreated.

PW5 Santosh Kumari is also a neighbour of the accused persons. One day when Rachna had gone to fetch water from the common public tap which was situated near the house of this witness and could be approached only through the court yard of her house, the deceased informed her that she had been beaten up by all the accused. Her fingers were swollen. She used to hear Rachna Devi crying but did not go to the house of the accused to ascertain the reasons as Rachna informed her that in case she intervened or visited their house, she would be subjected to more severe maltreatment. After her death, the accused were ostracized by the villagers. She concludes by saying that the accused did not allow her to talk to her or anybody else.

PW6 Bagga Ram also states that the deceased was maltreated and beaten up and states that he had also heard her crying "Bachao Bachao" (save me save me). He did not go to rescue her in the house of the accused for the reason that Bimla Devi Respondent No.3 used to say that it is a personal matter. PW8 Dr. Sushil Kumar conducted the autopsy of Rachna vide his report Ext.PW8/B. His conclusion was that Rachna had died by consuming Aluminum Phosphate poison. This opinion is based on the report Ext.PW8/C of the Chemical Examiner. In his cross-examination, he says that Aluminum Phosphate cannot be administered to a person deceitfully and forcibly because it gives an obnoxious and pungent smell.

PW9 Suresh Kumar brother of the deceased states that he was serving in the Indian Army in 1998 and after the marriage of her sister, the deceased had told him that father-in-law, mother-in-law, husband, devar and nanad (sister-in-law) Anju Devi, harassed her. He was informed about this fact when he had come on annual leave in the month of September and October, 1998. He says that adequate/proper food was not served to her. She was not given enough food and left over was served to her when she was addressed as a "bitch". He also states that she was beaten up by all the accused persons. He had counseled the deceased to be patient as everything would be alright after marriage. Letter Ext.P-2 was addressed to him by the deceased one day before her death. He says that this letter was received by him on 22.1.1998 for the reason that he was posted in a remote area and he had come home as he was informed about the death of his sister. In his cross-examination he states that he had reached at home on 20th January, 1998 and stayed there for a few days.

PW10 Rajesh Kumar is also brother of the deceased serving in the Indian Navy and posted at Goa. He had visited his home in the last week of December, 1997. At that time, he had been informed by the deceased that she was being maltreated; she was not given enough to eat, soap either for washing clothes or bathing. She also told that her in-laws gave her washing soap for bathing. In September, 1997, he received letter Ext.P1 which was contained in envelope Ext.P4. She also informed him that the accused persons were asking her to bring dowry. He also says that he received a telegram Ext.P3. In October, 1997 he had gone to the house of the accused along with Prem Dutt husband of his elder sister. At that time Rachna was crying. The accused had told him that she used to weep because she was emotional.

In their statements u/s 313 Cr.P.C. the accused have denied any involvement in the offence and have stated that the case has been registered against them on account of sentiment and not because of any positive evidence on the record. This is the totality of the evidence produced on the record.

The learned trial Court, on the assessment of the evidence on record says that the evidence does not prove consistent treatment of cruelty meted out to the deceased and doubts the genuineness of the letters which were addressed to PW9 Suresh Kumar and PW10 Rajesh Kumar brothers of the deceased.

Learned Senior Additional Advocate General urges that the learned trial Court was wrong in not considering the case of the prosecution which had otherwise proved the allegations against the accused. It is urged that it was established on the record of the case through the evidence of the father and brothers of the deceased that the deceased was subjected to cruelty/maltreatment which forced her to end her life. In particular, learned senior Additional Advocate General emphasizes letter Ext.P-1 dated 12.9.1997 which according to him contains vivid details of the kind of cruel treatment to which she was being subjected. In the relevant portion of the letter (Ext.P1), she writes:

...Agay samachar ish parkar say hai ki apney toh chhoti behan ko bhula hi diya hai. Mugar behnay nahi bhula sakti. Baki maay theek thak say hoo. 16th August ko aa gai hoo ji. Agay samachar yah hai ki mainay aaj tak apko bataya nahi. Parantu abb apko baata rahi hoo ki mairay sash sasur, dever or nanday mujhay daaj kay leeya tanay daay rahi hai. Kahati hai ki phalanay ki bahoo ki shadi maay fridge wa rangeen television bhee aaya hai wa Gas bhee. Prantu apkay bhaiyoo nay nahi diya hai. Unko keha dena ki agaar nahi layagi toh mujhay kishi deen jaan say hath dhonay paragay wa apkay bhai achhi achhi nokari par hai wo jab bhee atay hai toh apko dush rupay dekar jatay hai. Ishleeay bhai ji maay tang aa kar yeh sab batay apko leekh rahi hoo. Aisha na kabhi ho ki apko apnee behan say sada kay leeya hath dhonay paray. Jaisha aap achha samjhatay hai waisha karay. Wa jab say mainay ish ghar maay pair rakha hai taab say unhonay nay pait bhar khana nahi diya hai. Wa jarurat say jayada kaam letay hai wa Anju Nand kahati hai ki kutti aa gai. Usko tukra daloo. Kripya inn batoo ka gusha maat manay. Jaisha aap achha samjhatay hai waisha karay. Maay bhee kaphi mazboor hokar apko likh rahi hoo. Aisay sashural Bhagwan na karay kishi ko meelay. Wa Dever bhee mujhay buree negha say dekhtay hai. Apkay Jeeja ji Sash Sasur kay kehnay par chaltay hai wa kehtay hai ki aap beshak apney bhaioo ko bula loo. Hum kishi say bhee nahi dartay hai....

Translation: Further news is that you have forgotten your younger sister but your sister cannot forget you. Otherwise, I am alright. I returned on 16th August. Further that I have not told you something till date but I am telling you that my mother-in-law, father-in-law, Dever ( brother-in-law) and sister-in-laws taunt me for bringing inadequate dowry. They say that in so and so marriage fridge and colour Television etc. were given and gas was also one of the items. But your brothers have not given these articles. Tell them that if they do not bring these items then I will have to pay for it with my life and your brothers are working on good posts but whenever they come, they just give you ten rupees and go away. That is why dear brother I am telling this to you under extreme conditions of distress. Please do whatever you think is the right thing to do. I hope that time does not come when you will have to lose a sister. Do whatever you think is the correct thing. From the time when I have stepped into his house they have not given me enough food to eat and make me perform hard work and over work me and Anju sister-in-law says that the bitch has come throw some left over to her. Please do not feel angry. Please do what ever you think is appropriate. I have written to you after my patience has been exhausted. I pray to God that nobody should get in-laws like this. My brother-in-law also casts an evil eye on me. Your brother-in-law (Jeeja ji) is acting at the behest of my father-in-law and mother-in-law and say do whatever you like call your brothers if you want, we are not afraid of anybody....

This letter dated 12.9.1997 was sent by an ordinary post envelope (Ext.P-4) has been addressed to PW10 Rajesh Kumar brother of the deceased, who was posted in INAS Hansa at Goa. The second communication on the record is Ext.P2 dated 12.1.1998 which was addressed to PW9 Suresh Kumar. We again reproduced the words of this letter.

Agay samchar ish parkar say hai ki maay Ludhiana say aa gai hoo wa mujhay etna tang kar rakha hai ki kaya bataoo. Mujhay shash sasur, apkay jeeja ji, dever wa nanday Anju wa Meena sabnay apkay patora Ram Krishan kay sath milkar prgramme racha hai mujhay jaan say marnay ka. Pata nahi ki kish time par mujhay khatam ker dengay. Aap kripya jitnee jaldi ho sakay humaray ghar anay ko koshish karay wa mujhay bachai. Aik bar pahlay bhi sash nay jabardasti mujhay khanay maay dawai khela dee thee wa bach gai thee. Mayy bahoot dukhi hoo chuki hoo. Raat deen kaam karwatay hai khanay ka naam tak nahi letay hai. Sashur wa dever janbujhakar mujha ko buri nigha say dekhatay hai....

Translation: Further I informed you that I have returned from Ludhiana and I have been troubled and tormented to such an extent which I cannot tell you. My father-in-law, mother-in-law, your brother-in-law (my husband), dever and sister-in-laws Anju and Meena and Ram Krishan elder brother of my father-in-law hatched a plan to kill me. I do not know when I will be killed by these people. Please come home as soon as possible and save me. On a previous occasion also my mother-in-law had mixed some poison substance in my food but I was saved. I am very unhappy and distressed. They make me work day and night and do not even ask me for food. Father-in-law and Dever cast evil eye on me

Ext. P3 is the telegram which has been addressed to PW10 Rajesh Kumar, who at that time posted at Kochi. This telegram has been sent by PW1 Braham Dass on 24.12.1997 saying: "come home very very soon

Learned Senior Additional Advocate General submits that these letters themselves constitute proof of the very foundation of the cruel treatment meted out to the deceased. In letter Ext.P2, she also says that she had been subjected to such intense cruelty that the mother-in-law made an attempt to kill her by administering poison in her food. The reasons for rejection of these letters are not clear on the reasoning of the learned Sessions Judge and in any event rejection cannot be accepted. He submits that these letters and especially the last letter (Ext.P2) addressed to PW9 Suresh Kumar could also be treated as dying declaration and the respondents prosecuted for offences u/s 498-A.

We have heard learned counsel for parties and have gone through the record.

Sh. Anup Chitkara, learned counsel appearing for the respondents urges that there is no gross perversity in the conclusion arrived at by the trial Court, this court should and ought not to interfere. He relies upon the decision of the Supreme Court in Vijai Singh Vs. State of U.P., (2005) 12 SCC 506. The Court holds:

4 Turning now to the appeals against acquittal, having perused the reasoning of the High Court, we do not find that the ground which weighed with the High Court in acquitting accused Ashok Kumar and Vinod Kumar was perverse in any manner and it is well settled that unless the judgment of acquittal is found to be perverse, the appellate Court would not interfere with the same. (P. 508)

He submits that this very principle is established and needs no reiteration. In Kallu @ Masih and Others Vs. State of Madhya Pradesh, the Court has again reiterated this principle holding:

While deciding an appeal against acquittal, the power of the appellate Court is no less than the power exercised while hearing appeals against conviction. In both types of appeals, the power exists to review the entire evidence. However, one significant difference is that an order of acquittal will not be interfered with, by an appellate court, where the judgment of the trial court is based on evidence and the view taken is reasonable and plausible. It will not reverse the decision of the trial court merely because a different view is possible. The appellate court will also bear in mind that there is a presumption of innocence in favour of the accused and the accused is entitled to get the benefit of any doubt. Further, if it decides to interfere, it should assign reasons for differing with the decision of the trial court. (P.317&318)

Learned counsel submits that if two views are possible on the evidence on record, the one favouring the accused should be adopted. In K. Prakashan Vs. P.K. Surenderan, the Supreme Court held:

It is now trite that if two views are possible, the appellate court shall not reverse a judgment of acquittal only because another view is possible to be taken. The appellate Court''s jurisdiction to interfere is limited. (See M.S. Narayana Menon and Mohadeo Laxman Sarane V. State of Maharashtra, (2007) 12 SCC 705). The High Court furthermore has not met the reasons of the learned trial Judge. It proceeded on the premise that the appellant had not been able to discharge his burden of proof in terms of Section 139 of the Act without posing unto itself a further question as to how the said burden of proof can be discharged. It furthermore did not take into consideration the legal principle that the standard of proof upon a prosecution and upon an accused is different. (P.267)

Learned counsel also submits that in an appeal from acquittal, the High Court has full powers to re appreciate the evidence and there is no limitation. However, the Court is bound and circumscribed by the established principles of criminal jurisprudence. He relies upon the decision of the Supreme Court in Sangappa and Others Vs. State of Karnataka, The Court holds:

We must express our reservation for the manner in which the High Court disposed of the appeal u/s 378 (1) and (3) of Code of Criminal Procedure. It is true that in an appeal from acquittal the High Court has full power to re-appreciate and re-assess the entire evidence upon which the order of acquittal was founded and then to come to its own conclusion. There is no limitation placed on that power of the High Court. The Code makes no difference in the power of the appellate court, between appeal filed by the State or by other person but the appellate court would not be justified merely because it, feels that a different view should be taken for reasons which are not so strong. This Court repeatedly held that the High Court in exercising the power conferred by the Code and before reaching its conclusion upon facts, it shall give always proper weight and consideration to such matters as (1) the view of the trial Judge as to the credibility of the witnesses; (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that they have been acquitted at trial; (3) the right of the accused to the benefit of any doubt. (Pp.978 &979)

Learned counsel submits that mens rea u/s 306 I.P.C. is required to be established in unequivocal terms before any conviction can follow. He relies upon the decision in Gangula Mohan Reddy Vs. State of Andhra Pradesh, the Court holds:

20 Abetment involves a mental process of instigating a person or intentionally aiding a person in doing of a thing. Without a positive act on the part of the accused to instigate or aid in committing suicide, conviction cannot be sustained.

The intention of the Legislature and the ratio of the cases decided by this Court is clear that in order to convict a person u/s 306 IPC there has to be a clear mens rea to commit the offence. It also requires an active act or direct act which led the deceased to commit suicide seeing no opinion and this act must have been intended to push the deceased into such a position that he committed suicide. (P.330)

These are the established principles. We need not to re-affirm and reiterate them. Learned counsel also submits that the facts urged by the prosecution are indeed bizarre. The deceased had actually walked up to the house of her sister PW2 Bhagwati Devi where she died and who is the only eye witness. Inquest report Ext.PW11/B has not been prepared in the presence of PW1 Braham Dass. In the totality of these circumstances, the guilt of the accused has to be determined.

Learned counsel appearing for the respondents urges that even if the evidence on record is accepted that is to say that the act of cruelty as stated in the two letters, it cannot form the basis of conviction. He relies upon the decision of the Supreme Court in Rajbabu and Another Vs. State of M.P., The Court in that case, in the entirety of the evidence on record considered one vital piece of evidence i.e. latest letters written by the deceased mentioning therein that the attitude of the family was not good towards her. She was not treated well. The Court did not consider this to be a safe piece of evidence for convicting the accused. Learned counsel then submits that abetment to commit suicide involves a mental process of instigating a person in doing a particular act. He relies upon the decision in Sohan Raj Sharma Vs. State of Haryana, holding:

10... The word "instigate" literally means to provoke, incite, urge on or bring about by persuasion to do any thing.... (P.2570)

Lastly, learned counsel urges that the writing of the two letters having not been established could not be considered as vital piece of evidence attributing criminality to the accused.

We have given our anxious consideration to the submissions made by the learned counsel for the parties. We find that two vital piece of evidence, namely Ext.P1 and Ext.P2 as also the telegram Ext.P3 which were important links in the evidence, have not been considered by the court below in its true perspective. By reading the contents of these letters, we find that at this stage, it may not be possible to order of re-trial for the reason that the incident occurred in 1998 and after a period of 13 years, in ordering of re-trial would obviously serve no purpose for the reason that even the memory of the witnesses may have faded. This Court is not powerless to order retrial but that point is well settled. In Mohinder Singh Vs. The State, the court holds:

In our opinion, there has been in substance no fair and proper trial in this case and we are constrained to allow this appeal, set aside the conviction of the appellant under Ss. 302 and 307 read with S. 34, Penal Code, and direct that he be set at liberty forthwith. In ordinary circumstances we might have remanded the case for a fresh trial, but we consider that such a course would, in the present case, be unfair and contrary to settled practice, seeing that the appellant has been in a state of suspense over his sentence of death for more than a year. (P.418)

In Ukha Kolhe Vs. The State of Maharashtra, AIR 1963 S.C. 1531, the court reaffirms:

An order for retrial of a criminal case is made in exceptional cases, and not unless the appellate Court is satisfied that the Court trying the proceeding had no jurisdiction to try it or that the trial was vitiated by serious illegalities or irregularities or on account of misconception of the nature of the proceedings and on that account in substance there had been no real trial or that the Prosecutor or an accused was, for reasons over which he had no control, prevented from leading or tendering evidence material to the charge, and in the interests of justice the appellate Court deems it appropriate, having regard to the circumstances of the case, that the accused should be put on his trial again. An order of re-trial wipes out from the record the earlier proceeding, and exposes the person accused to another trial which affords the prosecutor an opportunity to rectify the infirmities disclosed in the earlier trial, and will not ordinarily be countenanced when it is made merely to enable the prosecutor to lead evidence which he could but has not cared to lead either on account of insufficient appreciation of the nature of the case or for other reasons. Harries, C. J., in Ramanlal Rathi Vs. The State, observed:

If at the end of a criminal prosecution the evidence leaves the Court in doubt as to the guilt of the accused the latter is entitled to a verdict of not guilty. A retrial may be ordered when the original trial has not been satisfactory for particular reasons, for example, if evidence had been wrongly rejected which should have been admitted, or admitted when it should have been rejected, or the Court had refused to hear certain witness who should have been heard. But retrial cannot be ordered on the ground that, the prosecution did not produce the proper evidence and did not know how to prove their case.

In the present case, undoubtedly the trial before the Magistrate suffered from irregularities which we have already set out. The evidence, such as was led, was deficient in important respects; but that could not be a sufficient ground for directing a retrial. If the Sessions judge thought that in the interests of justice and for a just and proper decision of the case it was necessary that additional evidence should be brought on the record he should have, instead of directing a retrial and reopening the entire proceedings 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. (P.1587).

In Municipal Corporation of Delhi Vs. Girdharilal Sapuru and Others, the Court rules:

6 No other contention was raised before us by Mr. Singh save saying that long time has elapsed since the prosecution was launched and, therefore, further trial would cause hardship to the accused. Times without number it has been pointed out by this Court that those who indulge into such a pernicious activity of manufacturing and/or selling adulterated articles of food posing a threat to the health and well-being of large number of people should be properly dealt with according to law and in such cases such narrow technicalities should not be allowed to outweigh the cause of justice. (P.1171)

In Akalu Ahir and Others Vs. Ramdeo Ram, the court holds:

8... It is only in glaring cases of injustice resulting from some violation of fundamental principles of law by the trial court in the course of trial, that the High Court is empowered to set aside the order of acquittal and direct the re-trial of the acquitted accused persons. From the very nature of this power, it should be exercised in exceptional cases and with great care and caution. Trials are not to be lightly set aside when such orders expose the accused persons to a fresh trial with all its consequential harassment. This matter is not res integra and has indeed been dealt with by this Court at least in the four cases noticed by the High Court. In K. C. Reddy (supra),this court examined two of its earlier decisions in D.Stenbens (supra) and Jogendranath Jha (supra) and after quoting certain passages from those decisions observed as follows:

These two cases clearly lay down the limits of the High Court''s jurisdiction to interfere with an order of acquittal in revision; in particular, jogendranath Jha''s case stresses that it is not open to a High Court to convert a finding of acquittal into one of conviction in view of the provisions of s. 439(4) and that the High Court cannot do this even indirectly by ordering re-trial. What had happened in that case was that the High Court reversed pure findings of facts based on the trial court''s appreciation of evidence but formally complied with sub-s. (4) by directing only a re-trial of the appellants without convicting them and warned that the court retrying the ''case should not be influenced by any expression of opinion contained in the judgment of the High Court. In that connection this Court observed that there could be little doubt that the dice was loaded against the appellants of that case and it might prove difficult for any subordinate judicial officer dealing with the case to put aside altogether the strong views expressed in the judgment as to the credibility of the prosecution witnesses and the circumstances of the case in general (P.586 & 587)

Similarly in Satyajit Banerjee and Others Vs. State of West Bengal and Others, the court after considering the ambit of the powers of the High Court in ordering a retrial on the basis of the precedent of the Supreme Court in K. Chinnaswamy Reddy Vs. State of Andhra Pradesh, , Zahira Habibulla H. Sheikh and Another Vs. State of Gujarat and Others, and Ram Bihari Yadav Vs. State of Bihar and Others, held:

23 Without going into the correctness of all the observations made by the High Court in the impugned judgment, we find it necessary to clarify that the High Court ought not to have directed the trial Court to hold a de novo trial and take decision on the basis of so called ''suggested formula''. The High Court in its concluding part of the judgment does state that any observation in its judgment should not influence the mind of the trial court but, at the same time, the High Court directs the trial Court to take ''a fresh decision from stage one'' and on the basis of the ''suggested formula''. Learned counsel for the accused is justified in his grievance and apprehension that the aforesaid observations and directions are likely to be mistaken by the trial court as if there is a mandate to it to record the verdict of conviction against the accused regardless of the worth and weight of the evidence before it. (P.652)

In Zahira Habibulla H. Sheikh and Another Vs. State of Gujarat and Others, the court holds that for retrial or for taking additional evidence u/s 391 Cr.P.C., the proper procedure will depend upon the facts and circumstances of each case and cannot be put in a straight jacket. The Court holds:

This Court has often emphasised 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 as a community and harmful to the society in general. The concept of fair trial entails familiar triangulation of interests of the accused, the victim and the society and it is the community that acts through the State and prosecuting agencies. Interests of society is not to be treated completely with disdain and as persona non grata. Courts have always been considered to have an over-riding duty to maintain public confidence in the administration of justice - often referred to as the duty to vindicate and uphold the ''majesty of the law''. Due administration of justice has always been viewed as a continuous process, not confined to determination of the particular case, protecting its ability to function as a Court of law in the future as in the case before it. If a criminal Court is to be an effective instrument in dispensing justice, the Presiding Judge must cease to be a spectator and a mere recording machine by becoming a participant in the trial evincing intelligence, active interest and elicit all relevant materials necessary for reaching the correct conclusion, to find out the truth, and administer justice with fairness and impartiality both to the parties and to the community it serves. Courts administering criminal justice cannot turn a blind eye to vexatious or oppressive conduct that has occurred in relation to proceedings, even if a fair trial is still possible, except at the risk of undermining the fair name and standing of the judges as impartial and independent adjudicators.

36... There can be no analytical, all comprehensive or exhaustive definition of the concept of a fair trial, and it may have to be determined in seemingly infinite variety of actual situations with the ultimate object in mind viz. whether something that was done or said either before or at the trial deprived the quality of fairness to a degree where a miscarriage of justice has resulted. It will not be correct to say that it is only the accused who must be fairly dealt with. That would be turning Nelson''s eyes to the needs of the society at large and the victims or their family members and relatives. Each one has an inbuilt right to be dealt with fairly in a criminal trial. Denial of a fair trial is as much injustice to the accused as is to the victim and the society. Fair trial obviously would mean a trial before an impartial Judge, a fair prosecutor and atmosphere of judicial calm. Fair trial means a trial in which bias or prejudice for or against the accused, the witnesses, or the cause which is being tried is eliminated. If the witnesses get threatened or are forced to give false evidence that also would not result in a fair trial. The failure to hear material witnesses is certainly denial of fair trial.

68... Criminal trials should not be reduced to be mock trials or shadow-boxing or fixed trials. Judicial criminal administration system must be kept clean and beyond the reach of whimsical political wills or agendas and properly insulated from discriminatory standards or yardsticks of the type prohibited by the mandate of the Constitution. (P.184 &197).

At the same time, the Court also cautions:

In the 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 or at a later stage also resorting to Section 391 instead of throwing hands in the air in despair. It would not be right in acquitting an accused person solely on account of the defect; to do so would tantamount to playing into the hands of the investigating officer if the investigation is designedly defective. (See Karnel Singh Vs. State of M.P.,

In Paras Yadav and others Vs. The State of Bihar, it was held that if the lapse or omission is committed by the investigating agency designedly or because of negligence the prosecution evidence is required to be examined de hors such omissions to find out whether the said evidence is reliable or not. The contaminated conduct of officials should not stand on the way of Courts getting at the truth by having recourse to Sections 311, 391 of the Code and Section 165 of the Evidence Act at the appropriate and relevant stages and evaluating the entire evidence; otherwise the designed mischief would be perpetuated with a premium to the offenders and justice would not only be denied to the complainant party but also made an ultimate casualty.

As was observed in Ram Bihari Yadav Vs. State of Bihar and Others, if primacy is given to such designed or negligent investigation, to the omission or lapses by perfunctory investigation or omissions, the faith and confidence of the people would be shaken not only in the Law enforcing agency but also in the administration of justice in the hands of Courts. The view was again reiterated in Amar Singh Vs. Balwinder Singh and Others,

It is no doubt true that the accused persons have been acquitted by the trial Court and the acquittal has been upheld, but if the acquittal is unmerited and based on tainted evidence, tailored investigation, unprincipled prosecutor and perfunctory trial and evidence of threatened/terrorized witnesses, it is no acquittal in the eye of law and no sanctity or credibility can be attached and given to the so-called findings. It seems to be nothing but a travesty of truth, fraud on legal process and the resultant decisions of Courts -coram non judis and non est. There is, therefore, every justification to call for interference in these appeals. (Pp.195 & 196).

But as we find at this stage, we would not only end up by ordering retrial but also impleading the others as named in Ext.P1 and Ext.P2 as accused persons against whom the trial will have to be conducted de novo. We cannot but express our displeasure and anguish in the manner in which the prosecution has proceeded to conduct the case without investigating the role of the other persons as named in these two letters. The prosecuting agency including the police seems to have forgotten the fundamental principles of law.

The gist of the two letters considered by us is that she was being treated in a cruel manner. In the first letter dated 12.9.1997 (Ext.P1) she accuses her father-in-law, mother-in-law, brother-in-law and sister-in-law for taunting her for bringing inadequate dowry. She also says that at the time when she was married, she has not been given adequate food to eat and left over was served to her when she was addressed as a "bitch". The allegation is against Anju her sister-in-law who is reported to have said "Kutti aa gai hay usay tukara daloo" (the bitch has come given her left over food). At the end of her letter she prays to God that nobody get in-laws like she has got and that her husband has acted according to his father and mother and he had told her that she might call her brothers, we are not afraid of anybody. In letter Ext.P2 dated 12.1.1998, she says that after her return from Ludhiana, she has been tormented to the extent that her mother-in-law,father-in law, husband, brother-in-law and sister-in-law, Nanad Anju and Meena and Ram Krishan, elder brother of her father-in-law, hatched a conspiracy to kill her but she does not know when they will put end her life. These two letters were the clear cut indication to investigate as to whether a conspiracy had been hatched by the people named in these letters to kill her for the reasons as stated by her therein more especially when she was being treated to cruelty by in-laws. Why an attempt has not been made by the Investigating Agency or the Public Prosecutor to pursue this line or the Court which should have been intervened at that time to order further investigations on the lines as noticed by us or the Court is not acted by exercising its powers for ordering additional evidence/further investigation is something which remains obscure and is to be condemned out right. We say this because we realize that if at this time we sent this case back for retrial it would require reinvestigation of an incident related to the year 1998 and would hit a dead end. We condemn the manner in which the case has been investigated and tried.

Adverting to the question of retrial if we send the case back, we realize that at this point of time that is after a period of thirteen years, all the clues leading to these people would have been covered up/obliterated and that would be another exercise in futility. We do not say that time wipes out criminality but then we are alive to the practicality of the situation. We do not intend to lay this down as a precedent for any future case.

In the totality of the facts and circumstances, with the material on the record, we cannot but accept the judgment of the learned trial Court which according to us has also acted in a sense of neutrality not required by the judicial system. We cannot but quote the Supreme Court on the role of the Judge who is not a mere silent and dumb spectator but to act in consonance with law to ensure that justice is done. In Zahira Habibulla''s case supra, the Court held:

Right from the inception of the judicial system it has been accepted that discovery, vindication and establishment of truth are the main purposes underlying existence of Courts of justice. The operating principles for a fair trial permeate the common law in both civil and criminal contexts. Application of these principles involve a delicate judicial balancing of competing interests in a criminal trial, the interests of the accused and the public and to a great extent that of the victim have to be weighed not losing sight of the public interest involved in the prosecution of persons who commit offences....

A criminal trial is a judicial examination of the issues in the case and its purpose is to arrive at a judgment on an issue as a fact or relevant facts which may lead to the discovery of the fact issue and obtain proof of such facts at which the prosecution and the accused have arrived by their pleadings; the controlling question being the guilt or innocence of the accused. Since the object 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 conducted under such rules as will protect the innocent, and punish the guilty. The proof of charge which has to be beyond reasonable doubt must depend upon judicial evaluation of the totality of the evidence, oral and circumstantial and not by an isolated scrutiny....

The fair trial for a criminal offence consists not only in technical observance of the frame and forms of law, but also in recognition and just application of its principles in substance, to find out the truth and prevent miscarriage of justice.........

The Courts have to take a participatory role in a trial. They are not expected to be tape recorders to record whatever is being stated by the witnesses. Section 311 of the Code and Section 165 of the Evidence Act confer vast and wide powers on Presiding Officers of Court to elicit all necessary materials by playing an active role in the evidence collecting process. They have to monitor the proceedings in aid of justice in a manner that something, which is not relevant, is not unnecessarily brought into record. Even if the prosecutor is remiss in some ways, it can control the proceedings effectively so that ultimate objective i.e. truth is arrived at. This becomes more necessary where the Court has reasons to believe that the prosecuting agency or the prosecutor is not acting in the requisite manner. The Court cannot afford to be wishfully or pretend to be blissfully ignorant or oblivious to such serious pitfalls or dereliction of duty on the part of the prosecuting agency. The prosecutor who does not act fairly and acts more like a counsel for the defence is a liability to the fair judicial system, and Courts could not also play into the hands of such prosecuting agency showing indifference or adopting an attitude of total aloofness.

The power of the Court u/s 165 of the Evidence Act is in a way complementary to its power u/s 311 of the Code. The section consists of two parts i.e (i) giving a discretion to the Court to examine the witness at any stage and (ii) the mandatory portion which compels the Court to examine a witness if his evidence appears to be essential to the just decision of the Court. Though the discretion given to the Court is very wide, the very width requires a corresponding caution. In Mohanlal Shamji Soni Vs. Union of India and another, this Court has observed, while considering the scope and ambit of Section 311, that the very usage of the word such as, ''any Court'' ''at any stage'', or ''any enquiry or trial or other proceedings'' ''any person'' and ''any such person'' clearly spells out that the Section has expressed in the widest possible terms and do not limit the discretion of the Court in any way. However, as noted above, the very width requires a corresponding caution that the discretionary powers should be invoked as the exigencies of justice require and exercised judicially with circumspection and consistently with the provisions of the Code. The second part of the section does not allow any discretion but obligates and binds the Court to take necessary steps if the fresh evidence to be obtained is essential to the just decision of the case - ''essential'', to an active and alert mind and not to one which is bent to abandon or abdicate. Object of the Section is to enable the Court to arrive at the truth irrespective of the fact that the prosecution or the defence has failed to produce some evidence which is necessary for a just and proper disposal of the case. The power is exercised and the evidence is examined neither to help the prosecution nor the defence, if the Court feels that there is necessity to act in terms of Section 311 but only to subserve the cause of justice and public interest. It is done with an object of getting the evidence in aid of a just decision and to uphold the truth....

Ultimately, as noted above, ad nauseam the duty of the Court is to arrive at the truth and subserve the ends of justice. Section 311 of the Code does not confer any party any right to examine, cross-examine and re-examine any witness. This is a power given to the Court not to be merely exercised at the bidding of any one party/person but the powers conferred and discretion vested are to prevent any irretrievable or immeasurable damage to the cause of society, public interest and miscarriage of justice. Recourse may be had by Courts to power under this section only for the purpose of discovering relevant facts or obtaining proper proof of such facts as are necessary to arrive at a just decision in the case....

Though justice is depicted to be blind-folded, as popularly said, 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 law and administer justice and not to ignore or turn the mind/attention of the Court away from the truth of the cause or lis before it, in disregard of its duty to prevent miscarriage of justice. When an ordinary citizen makes a grievance against the mighty administration, any indifference, inaction or lethargy shown in protecting his right guaranteed in law will tend to paralyse by such inaction or lethargic action of Courts and erode in stages faith inbuilt in judicial system ultimately destroying the very justice delivery system of the country itself. Doing justice is the paramount consideration and that duty cannot be abdicated or diluted and diverted by manipulative red herrings.

The Courts at the expense of repetition we may state, exist for doing justice to the persons who are affected. The Trial/First Appellate Courts cannot get swayed by abstract technicalities and close their eyes to factors which need to be positively probed and noticed. The Court is not merely to act as tape recorder recording evidence, overlooking the object of trial i.e. to get at the truth. It cannot be oblivious to the active role to be played for which there is not only ample scope, but sufficient powers conferred under the Code. It has a greater duty and responsibility i.e. to render justice, in a case where the role of the prosecuting agency itself is put in issue and is said to be hand in glove with the accused, parading a mock fight and making a mockery of the criminal justice administration itself. (Pp.182,187,188, 189,190&192)

The learned trial Court holds that PW1 Braham Dass father of the deceased has stated in Ext.PA which his statement recorded u/s 154 Cr.P.C. that whenever his daughter would come home, she would say that her in-laws used to trouble her and 5/6 months prior to the occurrence, she has been administered some poisonous substance but she survived. In November, 1997, her husband had taken her to Ludhiana and stayed there for about half month and thereafter she was brought to her in laws home. He makes a general statement that she was being troubled by her in-laws without any specific incident. When he appears as witness, he says that the accused were demanding dowry in the nature of refrigerator, watch and stove etc. Except the demand of dowry, they did not maltreat her in any other way. On one occasion when she was suffering from stomach ailment, she was not given any medicine etc. Since his daughter could not bear any child, the accused used to trouble her and were saying that they wanted accused Kaam Raj to get married again. He disowns Ext.PA by saying that it has not been written according to what he stated to the police. He also says that he did not file any report/complaint etc. with respect to the demands which the accused was making. Six months prior to her death, the deceased had been admitted to hospital after she consumed poison. He also states about the deceased suffering from some kind of affliction from evil spirits etc.

PW2 Bhagwati Devi sister of the deceased who is an eye witness also stated facts which are general in nature. PW5 Santosh Kumari and PW6 Bagga Ram also state facts in general terms. In fact, the gist of the evidence recorded before the learned trial Court is that there are no specific instances of maltreatment but only sweeping generalizations. Be that as it may, the evidence being at variance, the two letters as noticed by us reveal a very disturbing trend that is pointing an accusing finger at the persons so named therein which include not only the accused but also the devar (brother-in-law), sister-in-laws and Ram Krishan elder brother of father-in-law of the deceased. We find that these accusations have remained obscure in investigation and if we order retrial of all these persons, after lapse of 13/14 years, no purpose is likely to be served. In these circumstances, we say that it is not merely sufficient for a Judge to sit as mute spectator but he had ample powers under the criminal law either to implead these persons or call for further investigation in the matter. We again reiterate that we are unable to understand the attitude of the two brothers, who are serving in the Indian Navy and Indian army and are reasonably well educated as also the father who was perfectly happy in having the sister/daughter beaten without doing anything. The attitude of PW2 Bhagwati Devi who is living near the house of the deceased was also of a dumb and mute spectator. To say anything more would be over stepping our jurisdiction. It is with a heavy heart that we now close this case. It is with reluctance that we dismiss this appeal. We also feel that this is one case where the State should inquire as to why further investigation in terms of the two letters as noticed by us above was not conducted by the police nor pursued in that direction by the Public Prosecutor. Bail bonds furnished by the respondents are discharged.