Bombay High Court
State Of Maharashtra vs Arun Savalaram Pagare on 10 August, 1988
JUDGMENT A.D. Tated, J.
1. This State appeal is directed against the judgment and order dt. 16th July 1980 passed by thee Additional Sessions Judge, Greater Bombay (Shri Y. N. Athalye), in Sessions Case No. 72 of 1979 whereby he acquitted the respondent-accused of the offence of murder and convicted him of the offence under the second part of S. 304 I.P.C. and sentenced him to suffer R.I. for three and a half years.
2. The prosecution case lies in a very narrow compass. The respondent-accused, aged about 30 years, was married to deceased Bharat about two years before the date of the incident which took place on 9th October 1978. The accused was working as a hamal at Wadi Bunder in the Central Railways and the deceased was serving as a teacher in a municipal school at Kurla. He was addicted to liquor and he often demanded money from his wife for, feeding his vice and on that account there used to be quarrels between the husband and the wife. About three days before the date of the incident the accused had driven out the deceased from his house. Therefore, she had been to the house of her maternal uncle and resided there. On the morning of 9th October 1978 the father of the accused had been to the house where the deceased resided with her maternal uncle and asked her why she did not reside with her husband. Thereupon the deceased told him that the accused beat her under the influence of drinks. The deceased had been to the school on 9th October 1978 and while she was returning from the school the accused contacted her and they had exchange of words. Soon thereafter the accused assaulted the deceased with a knife and gave a number of blows on her body. The deceased shouted for help. At that time Parashuram Bhagoji Gawade (P.W. 7) and Sundar Vasant Tribhuvan (P.W. 12), who were returning from Matunga Railway Station, heard the cries of a lady for help. They rushed in that direction and saw the accused stabbing the deceased with a knife. The accused after stabbing the deceased left the place. When Parashuram and Sundar approached the deceased, who was lying in a pool of blood with stab injuries, Parashuram was told that her husband stabbed her, The deceased gave the address of her relation. Mrs. Sushila Vinayak Adangale (P.W. 1) and asked Parashuram to go to the house of Sushila and bring her to her. There upon Parashuram went to Sushila and narrated her about the incident and told her that the deceased required her. Thereupon Sushila went to the place where the deceased was lying injured. Miss Pushpa Mahadev Jadhav (P.W. 5) also followed her. When Sushila and Pushpa reached the place and asked the deceased as to what had happened, she was not in a position to speak. They noticed that one of her earings and the mangalsutra were missing from her person.
3. Sushila (P.W. 1) and Pushpa (P.W. 5) took the injured Bharati to Sion Hospital. At the Sion Hospital Sushila narrated to the police constable on duty there as to what had happened. The police constable contacted Dharavi Police-Station. P.S.I. Sitaram Raghunath Kapase (P.W. 19), who received the telephone message, arrived at the hospital. He found that Bharati was not in a position to make a statement. He recorded the FIR Ex. 5 of Sushila. The injured Bharati had already breathed her last. Therefore, an offence under S. 302 I.P.C. was registered against her husband the respondent-accused. Dr. Miss Anjali Peter Alvares (P.W. 17) had examined the deceased at 7 p.m. on her admission at the Sion Hospital. Dr. Kailashchandra Banshilal Agrawal (P.W. 13) held autopsy on the dead body of the deceased on 10th October 1978 at 10.50 a.m. He found as many as 12 incised wounds on the body of the deceased. His post-mortem notes are at Ex. 25.
4. The respondent-accused was arrested on the same night, that is, on 9th October 1978, and he was produced before Dr. Arun Jagannath Ranade (P.W. 18). On examination a minor abrasion on his right thumb was noticed. When the accused was arrested and brought to the police-station he was searched in the presence of the panchas on 9th October 1978 at about 10.50 p.m. In the search of his person the knife (Art. 4), one broken mangalsutra and some other articles were found. They were seized after drawing up the panchnama Ex. 18. The shirt and the pair of trousers of the accused were seized from his person. One black wallet was recovered from his pocket. It is Art. 6. The clothes of the deceased Bharati were also seized. The panchnama of the scene of offence was drawn up. After completing the investigation the accused was prosecuted for the offence of murder punishable under S. 302 I.P.C.
5. The learned Additional Sessions Judge framed charge for the offence under S. 302 I.P.C. against the respondent-accused. The accused denied the charge. The defence as disclosed in the examination of the accused under S. 313 Cr.P.C. is that the relations between the accused and his wife Bharati were very good and the accused was proud of her being a teacher and he reciprocated his feelings towards her. He came to know about her death only in the hospital. He was not permitted to attend her funeral rites. His parents were also threatened that in case they tried to attend they would suffer. According to him, Sushila (P.W. 1) concocted a false case against him, as she had to pay for the room at the Matunga Labour Camp while the accused was in custody. He further states that after he was released on bail, the wife of the elder brother of the deceased lodged a false complaint of assault on hearing and seeing him released from the custody. He states that to avoid the harassment from Sushila he left for his native place after he was released on bail. He led no evidence in defence.
6. The learned Additional Sessions Judge, after considering the evidence on record, held that the respondent-accused assaulted his wife Bharati with a knife and caused the injuries found on her person. He also found that the accused, who inflicted the injuries, was in the knowledge that the injuries of the nature he had caused would result in death of his wife. He, however, found that the accused did not intend to cause the death of his wife. At the same time the accused knew the injuries caused by him were, in the ordinary course of nature, likely to cause the death of his wife. On such findings, the learned trial Judge held that the accused committed an offence under the second part of S. 304 I.P.C. Consequently, he convicted the accused of the said offence and imposed the sentence mentioned above.
7. The State, being aggrieved by the, acquittal of the respondent-accused of the charge of, murder under S. 302 I.P.C., preferred this appeal.
8. Mr. S. G. Deshmukh, learned Counsel appointed for the respondent-accused, contends that the evidence on record is not sufficient to warrant the conviction of the accused either for the offence of murder under S. 302 I.P.C. or of the offence under the second part of S. 304 I.P.C. In this appeal against acquittal, the learned counsel for defence can challenge the conviction of the accused by the trial Court. Therefore, it is necessary to examine the evidence on record to see whether the offence of which the accused has been convicted has been proved beyond reasonable doubt.
9. The prosecution, in order to prove the charge levelled against the respondent-accused, examined as many as 19 witnesses. Subhash Devram Adhangale (P.W. 9) is the younger brother of the deceased Bharati. Mrs. Sakhubai Bhimrao Lokhande (P.W. 16) was clearly related to the deceased. The mother of the deceased, Sitabai, is the sister of Sakhubai's husband. The husband of Sushila (P.W. 1) is the brother of the deceased. She resided in a building adjoining the building where the deceased and her husband (the accused) resided. After the deceased was driven out by the accused from his house she had gone to the house of Sakhubai and resided there. All those witnesses, being closely related to the accused and the deceased, knew about the strained relations between the parties. Even the accused in his examination under S. 313 Cr.P.C. has admitted that on Thursday before the date of the incident (that is, two days before the date of the incident, namely, on 7th October 1978) the deceased had left his house and went to reside at the house of Sakhubai vide question No. 4 and the answer of the accused thereto. Sushila, Subhash and Sakhubai are unanimous in their evidence that the accused was addicted to liquor and under the influence of liquor he always quarreled with his wife. Their evidence also shows that the accused was always in need of money for feeding his vice and whenever his wife did not pay him the money he beat her. There is the evidence of Jatmal Maganlal Kothari (P.W.. 15), a money-lender, who has deposed that on 21st September 1978 the accused borrowed Rs. 35/- from him by pawning the ladies wrist-watch (Art. 12). Even at the time of the incident the accused had snatched away the mangalsutra from the person of the deceased and also her money purse and they were found on the person of the accused when he was arrested shortly after the incident. The conduct of the accused in snatching away the mangalsutra and the money purse from the deceased fully corroborates the testimony of the witnesses mentioned above that the accused always needed money to feed his vice of drinking and for that purpose he often demanded money from his wife and in case she failed to pay the amount he beat her.
10. On the date of the incident, that is, on 9th October 1978, at about 6 p.m. deceased Bharati had been to Ganesh Baug School at Kurla and she was at the school till 5 p.m. Kachru Bapu Shinde (P.W. 4), who was the headmastes of Ganesh Baug Municipal Marathi Upper Primary School No. 1, gave evidence that on 9th October 1978 from 11.45 a.m. to 5.30 p.m. the deceased was present at the school and she left the place after the closing hours. Mrs. Kumudini Tukaram Waghmare (P.W. 11) was also a teacher at Asalpha Village School at Ghatkopar. Her school hours were from 12.10 p.m. to 5.50 p.m. she states that on 9th October 1978 she left the school about ten minutes earlier, as her daughter was unwell. She came to Matunga Railway Station in a local train, leaving Ghatkopar at 6 p.m. After coming out of the station while she was passing by the lane of the Matunga Workshop she saw the deceased and her husband walking together ahead of her. She also had a talk with the deceased and the deceased told her that she was returning from the school. Thereafter she walked ahead of the couple. After she had gone some distance ahead she heard the voice of some quarrel between the respondent-accused and his wife. She did not wait while the accused and his wife were exchanging words in the raised voice. Parashuram (P.W. 7) and Sunder (P.W. 12), who are residing at Matunga Labour Camp, had been to the Matunga Railway Station on that day to see off their friend Tribhuvan. While they were returning home at about 6.30 p.m. they heard the shouts of a lady, "Bachao, Bachao" ("Save, save"). They went in that direction and saw the accused stabbing his wife Bharati. They deposed that the accused after stabbing Bharati ran towards the railway station. Parashuram states that the woman who was lying in a pool of blood told him that her husband had stabbed her with a knife. He deposed that the woman requested him to inform her relative in the Labour Camp and gave the name and address. Thereupon Sundar and he went running to the place of which the address was given by the injured Bharati. At that place he saw Sushila (P.W. 1). Parashuram informed her about what he had learnt from the injured Bharati. Sushila accompanied Parashuram to the place of incident and there she saw Bharati lying injured in a pool of blood. Bharati was not in a position to speak. Sushila found an ear-ring and the mangalsutra missing from the person of Bharati. She took out the ear-ring which was on the person of Bharati and kept it with her and she produced it before the police while lodging the report Ex. 5. She lodged the report at about 7.30 p.m. In the report she disclosed the name of the accused as the assailant of Bharati. Her testimony is fully corroborated by the F.I.R. Ex. 5 lodged by her immediately after the incident. Statements of the eyewitnesses Parashuram and Sundar were recorded on the same night. On going through the depositions of those eyewitnesses, we do not find any discrepancy or inconsistency on any material point. There is nothing in their cross-examination to discredit their testimony. Therefore, we find that the learned Additional Sessions Judge was right in relying on the testimony of the eyewitnesses Parashuram and Sundar. The clothes of the deceased and the accused were sent to the chemical analyser and the chemical analyser's report Ex. 37 shows that the pair of trousers seized from the person of the accused had innumerable blood-stains ranging from 0.1 to 10 Cms. in diameter spread at places and the blood was of 'O' Group to which the blood of the deceased belonged. The accused denied that the pair of trousers belonged to him and was seized from his person. He did not explain how the blood stains of 'O' Group were found on his pair of trousers. Human blood was also found on the knife (Art. 4) seized from the person of the accused, but the group of the blood detected on it could not be determined, as the results were inconclusive. The mangalsutra of the deceased was also found soon after the incident in the pocket of the accused. That mangalsutra has been duly identified by Sushila. All those circumstances clearly connect the accused with the crime and they fully corroborate the testimony of the eyewitnesses Parashuram and Sundar.
11. Consequently, we find that the prosecution has satisfactorily proved that it was the respondent-accused and no one else who assaulted deceased Bharati with a knife in the evening of 9th October 1978 and caused the injuries found on her person. Dr. Miss Alvares (P.W. 17), who examined the deceased on 9th October 1978 at 7 p.m. on her admission in the Sion Hospital, found the following injuries on her person :-
"(1) Incised wound, 3" x 1", querry (Sic) deep, on the left side back over the scapula. Air bubbles were seen.
(2) Incised wound, 11/2" x 1", on the midline in between the scapula.
(3) Incised wound, 1" x 1/2" on the right side of the mid-line second thorasic vertebra.
(4) Incised wound, 1" x 1", one inch away from the third wound.
(5) Incised wound, 1" x 1/2", on the right scapula.
(6) Incised wound, 1" x 1" on the neck posterior.
(7) Incised wound, 2 1/2" x 1", on the right seventh and eighth intercostal space, outer axillary line."
Dr. Miss Alvares recorded all those injuries at Ex. 33. She deposed that the injuries observed by her were, in the ordinary course of nature, sufficient to cause death. She also stated that the injuries were dangerous and those could be caused by the knife (art. 4). According to her, the injuries were necessarily fatal. Bharati had died soon after her admission at the Sion Hospital. Dr. Agrawal (P.W. 13) held autopsy on her dead body on 10th October 1978 at 10.50 a.m. He deposed that there were 12 incised wounds on the body. Out of them two were inflicted due to surgery being performed on the person. According to him, most of the wounds were in the left upper region on the back of the woman. The first wound was on the left supra scapula, 5 Cms. x 4 1/2 Cms., opening into the chest cavity. The second was at the back of the neck on the leftside, 2.5 Cms. x 2.05 Cms. x 4 Cms., muscle deep. The third wound was on the left supra scapular region, 4 Cms. x 1 Cms. muscale deep. The fourth wound was between both the scapular, 2 Cms. x 1 Cm., bone deep. The fifth wound as on the right side of he fourth wound, 2 Cms. x 1/2 Cm. muscle deep. The sixth wound was on the right scapular region, 2 Cms. x 1/2 Cm. It was subcutaneous and both the ends were tapering. The seventh wound was behind the left ear, 2 Cms. x 1/2 Cm. It was deep and subcutaneous and both ends were tapering. The rights wound was on the left ear lobule, 1 Cm., not connecting the ear prick. There was an abrasion connecting the seventh and the eighth wounds. The ninth wound was on the right arm, anteriorly on the mid artery, 4 Cms. x 2 Cms., muscle deep. There were abrasions in the proximity of these wounds. The tenth wound was in the seventh intercostal space in the mid axillary line, 3 Cms. It was sutured. The eleventh wound was on the right mid axillary line, 2.5 Cms. x 1 Cm., in the seventh intercostal space, muscle deep, and the twelfth wound was a sutured wound, inferior to the eleventh wound, 3 Cms. in length. Dr. Agrawal states that there was a fracture of the second and the third ribs, posteriorly 4 Cms. from vertebra. In the opinion of Dr. Agrawal, the cause of death was shock following multiple injuries with pneumothorax. All the injuries were ante mortem. He states that the injuries were such that if they were not attended to, they would lead to death. The injury No. 1 could have been fatal if immediate aid was not given. According to him, those injuries could be inflicted with the knife (Art. 4). His post-mortem notes are at Ex. 25. During the cross-examination he admitted that he made a mistake by noting down in the post-mortem notes that two of the wounds were contused lacerated wounds. Taking into consideration the nature of the injuries, the parts of the body on which they were inflicted and the damage caused thereby to the internal vital organs, the testimony of Dr. Miss Alvares that those injuries were sufficient in the ordinary course of nature to cause death can be safely accepted. Even according to Dr. Agrawal, the injuries were such that if they were not attended to immediately they would lead to death. In the present case on account of those injuries Bharati breathed her last immediately after she was admitted at the Sion Hospital. Thus the prosecution evidence discussed above satisfactorily proves that the injuries found on the person of deceased Bharati were caused by a sharp edged weapon, viz. the knife (art. 4), by the accused and the injuries were on the vital parts of the body and they were sufficient in the ordinary course of nature to cause death and death was actually caused.
12. While considering the nature of the offence committed by the respondent-accused the learned Additional Sessions Judge at para 19 of his judgment observed as follows :-
"19. Even if it is taken into consideration that the accused was entire the influence of drink he committed the assault on Bharation the back side of her person; most of the injuries found on her body are on the back side. It is possible that when he was trying to compel her to go with him she might have turned her back to him and was trying to go away from him and to prevent her from going firstly, he might have threatened her by pulling the mangalsutra and then dealt a few blows with the knife on her person. If there was a single blow on her person, it could have been considered that the accused did not know that the result of the injuries inflicted by him would be the death of Bharati. In view of the fact that there were 7 to 8 injuries on the back of Bharati, one of them being at the base of the neck which even a layman knows to be one of the most vital parts of the human body and the force with which one of the injuries has been inflicted so that the blade of the instrument has entered deep up to the plural cavity goes to show that the person inflicting such injuries was in knowledge of likelihood that the injuries of this nature would result it is death of her person in addition to the nature of the injuries and the place where the injuries were inflicted also would be a factor which would attribute a knowledge to the person inflicting injuries. If an injury is inflicted at a place where medical attendance would be immediately available, it can be said that he knew very well that the injuries would not result into the death. But in the instant case, a lane away from all the easy facilities is the place where the injuries have been inflicted. Thus the number of the injuries and the place where the injuries were inflicted are sufficient to attribute knowledge to the accused that the injuries which he was causing were likely to result into the death of the person to whom the injuries were inflicted."
On the same topic the learned Additional Sessions Judge at para 21 of his judgment observed as follows :-
"21. As regards the nature of injuries, there is a slight difference of opinion between the two doctors. The doctor P.W. 13 has stated that in absence of any immediate medical aid the injuries that Bharati (sustained) would have caused her death, but her death could have been avoided if immediate medical help was given to her. As against this, Dr. P.W. 17 has stated that the wounds were in ordinary course of nature likely to cause death. The manner of deposing of P.W. 17 was of very casual attitude. She has virtually said 'yes' to any questions put to her by the advocates to seek her opinion. It is possible that a more scrupulous cross-examiner might have obtained from her admissions which could have proved that the injuries would not have been fatal. Her evidence, particularly so far as regards her opinion about the injuries is concerned, is untrustworthy and hence the only opinion that can be taken into consideration to ascertain the nature of the injuries is that of P.W. 13. Unfortunately, he has not qualified himself as an expert on this aspect. But one fact has been proved by him that the injury on the back had penetrated up to the plural cavity which resulted in the external air entering the plural cavity, the effect of which was the death of Bharati. Even a layman would be in a position to realise that such a deep wound would cause the death of the person on whom the wound is inflicted. It is possible that a person assaulting the individual from the back may not realise the gravity of the injury which would be inflicted. However, for inflicting such a deep injury a considerable amount of force would be required and hence a person dealing a blow with such a force would in ordinary course of nature realise that the injury was likely to cause death. Hence I hold that the deceased Bharati died as the consequence of the injuries inflicted on her by the accused."
13. The Supreme Court in Virsa Singh v. State of Punjab , considered the provisions of S. 300 I.P.C. While considering Thirdly of S. 300 I.P.C. their Lordships of the Supreme Court at page 467 of the report (AIR) stated the law thus :-
"To put it shortly, the prosecution must prove the following facts before it can bring a case under S. 300 'thirdly';
First, it must establish, quite objectively, that a bodily injury is present;
Secondly, the nature of the injury must be proved; These are purely objective investigations.
Thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that is to say, that it was not accidental or unintentional, or that some other kind of injury was intended.
Once these three elements are proved to be present, the enquiry proceeds further and, Fourthly, it must be proved that the injury of the type just described made up of the three elements set out above is sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender.
"Once these four elements are established by the prosecution (and, of course, the burden is on the prosecution throughout) the offence is murder under S. 300 'thirdly'. It does not matter that there was no intention to cause death. It does not matter that there was no intention even to cause an injury of a kind that is sufficient to cause death in the ordinary course of nature (not that there is any real distinction between the two). It does not even matter that there is no knowledge that an act of that kind will be likely to cause death. Once the intention to cause the bodily injury actually found to be present is proved, the rest of the enquiry is purely objective and the only question is whether, as a matter of purely objective inference, the injury is sufficient in the ordinary course of nature to cause death. No one has a licence to run around inflicting injuries that are sufficient to cause death in the ordinary course of nature and claim that - they are not guilty of murder. If they inflict injuries of that kind, they must face the consequences; and they can only escape if it can be shown, or reasonably deduced, that the injury was accidental or otherwise unintentional."
14. Illustration (c) to S. 300 I.P.C. reads thus :
"(c) A intentionally gives Z a sword-cut or club-wound sufficient to cause the death of a man in the ordinary course of nature. Z dies in consequence. Here A is guilty of murder, although he may not have intended to cause Z's death."
As has been mentioned in Illustration (c) to S. 300 I.P.C., it is not necessary for the prosecution to prove that the accused had intended to cause the death of the victim. The prosecution has only to prove that the accused intentionally caused injuries sufficient to cause the death of the victim in the ordinary course of nature, and on such proof the provisions of Thirdly of S. 300 I.P.C. are satisfied and thereby the offence committed would be murder punishable under S. 302 I.P.C. Their Lordships of the Supreme Court again considered the provisions of S. 300 I.P.C. in Rajwant Singh v. State of Kerala, AIR 1966 SC 1874. At page 1878 : (1966 Cri LJ 1509 at p. 1519) of the report their Lordships laid down the law thus :-
"The third clause [that is Thirdly of S. 300 I.P.C.] discards the test of subjective knowledge. It deals with acts done with the intention of causing bodily injury to a person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death. In this clause the result of the intentionlly caused injury must be viewed objectively. If the injury that the offender intends causing and does cause is sufficient to cause death in the ordinary way of nature the offence is murder whether the offender intended causing death or not and whether the offender had a subjective knowledge of the consequences or not. As was laid down in Virsa Singh v. State of Punjab, (supra) for the application of this clause it must be first established that an injury is caused, next it must be established objectively what the nature of that injury is the ordinary course of nature is. If the injury is found to be sufficient to cause death one test is satisfied. Then it must be proved that there was an intention to inflict that very injury and not some other injury and that it was not accidental or unintentional. If this is also held against the offender the offence of murder is established."
(The square bracketed portions supplied).
Applying these tests to the facts of the present case, the prosecution has satisfactorily proved that the respondent-accused did cause the injuries found on the person of deceased Bharati; that the accused intentionally inflicted those injuries; and that the injuries were sufficient in the ordinary course of nature to cause death and the death was actually caused. Therefore, the requirements of Thirdly of S. 300 I.P.C. are fully satisfied and the offence committed is that of murder punishable under S. 302 I.P.C.
15. The learned appointed Counsel for the respondent-accused contends that the evidence of Mrs. Waghmare (P.W. 11), who had seen the accused and his wife Bharati walking ahead of her, shows that they had exchange of hot words. Therefore, according to the learned Counsel, grave and sudden provocation must have been caused to the accused and under the influence of such provocation he might have inflicted the injuries found on the person of deceased Bharati. According to the learned Counsel the case is covered by Exception 1 or Exception 4 to S. 300 I.P.C. Exception 1 to S. 300 I.P.C. reads thus :
Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident."
There is no evidence that the deceased did such act as to deprive the accused of the power of self-control by grave and sudden provocation. The reading of the evidence of Mrs. Waghmare does not show that there was any act on the part of the deceased which would suddenly provoke the accused and thereby he would be deprived of the power of self-control leading to the brutal assault on the deceased. Consequently, we find that Exception 1 to S. 300 I.P.C. is not at all attracted in the circumstances of the case. Exception 4 to S. 300 I.P.C. reads thus :
"Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner."
The deceased was unarmed and the respondent-accused mounted an assault on her with the knife (art. 4) and caused as many as nine incised wounds on the vital parts of the body. In the circumstances in which Bharati was assaulted and done to death by the accused, it cannot be said that the accused had not taken undue advantage or had not acted in a cruel or unusual manner in causing the injuries found on her person.
Consequently, Exception 4 to S. 300 I.P.C. is also not attracted.
16. The reading of the judgment of the learned Additional Sessions Judge where he considered the nature of the offence and the same has been extracted and reproduced above clearly shows that he did not properly understand the provisions of Thirdly of S. 300 I.P.C. Had he cared to read even Illustration (c) to S. 300 I.P.C., he would have known that the offence which had been committed by the accused, on the facts fully established and proved in this case, squarely falls within Thirdly of S. 300 I.P.C. and as such he is liable to be punished under S. 302 I.P.C. We are surprised by the learned Additional Session Judge's lack of appreciation and understanding in this behalf, all the more so in a grave case such as this. Consequently, we find that the learned Additional Sessions Judge was not right in acquitting the accused of the offence under S. 302 I.P.C. and in reducing the offence to one punishable under the second part of S. 304 I.P.C.
17. The learned counsel for the respondent-accused contends that the incident took place on 9th October 1978. The accused was prosecuted for the offence under S. 302 I.P.C. and was convicted by the learned Additional Sessions Judge of the offence under the second part of S. 304 I.P.C. and was sentenced to suffer R.I. for three and a half years. The State preferred the present appeal against the acquittal of the accused of the offence under S. 302 I.P.C. in November 1980 and it is being now heard after a period of almost eight years. According to the learned Counsel, the accused has undergone the sentence awarded to him by the learned-Additional Sessions Judge. He submits that as a result of the conviction of the accused and the sentence awarded to him, he lost his service and had to shift to his native place and engaged himself in agriculture. He submits that the accused contracted a second marriage after his release from the prison and now is having a child of ten months. He submits that on admission of this appeal against the acquittal of the accused of the offence under S. 302 I.P.C., the Sword of Damocles has been continuously hanging on his head for the last about eight years and though he is physically out of the, prison, after he was released from prison, he is being always haunted by the fear of the extreme punishment which can be awarded for the offence under S. 302 I.P.C. and his life during this period has not been less miserable than that of a prisoner within the prison walls. He submits that no social purpose is likely to be served by convicting the accused of the offence under S. 302 I.P.C. and sentencing him to imprisonment for life, after such a long period from the date of the offence, and that too after the accused has already undergone R.I. for three and a half years awarded to him by the learned Additional Sessions Judge. He submits that speedy trial has been recognised as the fundamental right of an accused under Art. 21 of the Constitution of India. He referred to the decision of the Supreme Court in Hussainara Khatoon v. Home Secy. State of Bihar, Patna, . He relies on the law declared by the Supreme Court at pp. 1364 and 1365 of the report, (AIR) : (At pp. 1040 and 1041 of Cri LJ) thus :-
"There is also one other infirmity of the legal and judicial system which is responsible for this gross denial of justice to the under-trial prisoners and that is the notorious delay in disposal of cases. It is a sad reflection on the legal and judicial system that the trial of an accused should not even commence for a long number of years. Even a delay of one year in the commencement of the trial is bad enough : how much worse could it be when the delay is as long as 3 or 5 or 7 or even 10 years ! Speedy trial is of the essence of criminal justice and there can be no doubt that delay in trial by itself constitutes denial of justice. It is interesting to note that in the United States speedy trial is one of the constitutionally guaranteed rights. The Sixth Amendment to the Constitution provides that, 'In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial.' So also Art. 3 of the European Convention on Human Rights provides that, 'every one arrested or detained - shall be entitled to trial within a reasonable time or to release pending trial.' We think that even under our Constitution, though speedy trial is not specifically enumerated as a fundamental right, it is implicit in the broad sweep and content of Article 21 as interpreted by this Court in Maneka Gandhi v. Union of India, . We have held in that case that Article 21 confers a fundamental right on every person not to be deprived of his life or liberty except in accordance with the procedure prescribed by law and it is not enough to constitute compliance with the requirement of that Article that some semblance of a procedure should be prescribed by law, but that the procedure should be 'reasonable, fair and just'. If a person is deprived of his liberty under a procedure which is not 'reasonable, fair or just', such deprivation would be violative of his fundamental right under Art. 21 and he would be entitled to enforce such fundamental right and secure his release. Now obviously procedure prescribed by law for depriving a person of his liberty cannot be 'reasonable, fair or just' unless that procedure ensures a speedy trial for determination of the guilt of such person. No procedure which does not ensure a reasonably quick trial can be regarded as 'reasonable, fair or just' and it would fall foul of Art. 21. There can, therefore, be no doubt that speedy trial, and by speedy trial we mean reasonably expeditious trial, is an integral and essential part of the fundamental right to life and liberty enshrined in Art. 21. The question which would, however, arise is as to what would be the consequence if a person accused of an offence is denied speedy trial and is sought to be deprived of his liberty by imprisonment as a result of a long delayed trial in violation of his fundamental right under Art. 21. Would he be entitled to be released unconditionally freed from the charge levelled against him on the ground that trying him after an unduly long period of time and convicting him after such trial would constitute violation of his fundamental right under Art. 21 ? That is a question we shall have to consider when we hear the writ petition on merits on the adjourned date. But one thing is certain and we cannot impress it too strongly on the State Government that it is high time that the State Government realised its responsibility to the people in the matter of administration of justice and set up more courts for the trial of cases. We may point out that it would not be enough merely to establish more courts but the State Government would also have to man them by competent Judges and whatever is necessary for the purpose of recruiting competent Judges, such as improving their conditions of service, would have to be done by the State Government, if they want to improve the system of administration of justice and make it an effective instrument for reaching justice to the large masses of people for whom justice is today a meaningless and empty word."
Their lordships of the Supreme Court while deciding the writ petition on merits in Hussainara Khatoon's case (1979 Cri LJ 1045) (supra) have not answered the question posed in their judgment referred to above. Their lordships on the question of speedy trial, observed thus :-
"Speedy trial is, as held by us in our earlier judgment dt. 26th February 1979 [that is, the order passed in Writ Petition No. 57 of 1979 by P. N. Bhagwati, J. (as he then was), and A. P. Sen, J.], an essential ingredient of 'reasonable, fair and just' procedure guaranteed by Art. 21 and it is the constitutional obligation of the State to devise such a procedure as would ensure speedy trial to the accused. The State cannot be permitted to deny the constitutional right of speedy trial to the accused on the ground that the State has no adequate financial resources to incur the necessary expenditure needed for improving the administrative and judicial apparatus with a view to ensuring speedy trial. The State may have its financial constraints and its priorities in expenditure, but, as pointed out by the Court in Rhem v. Malclm, 377 F Supp 995 : 'The law does not permit any Government to deprive its citizens of constitutional rights on a plea of poverty'. It is also interesting to notice what Justice, then Judge, Blackmum said in Jackson v. Bishop, 404 F Supp 2d 571 :
'Humane considerations and constitutional requirements are not, in this day, to be measured by dollar considerations .....' So also in Holt v. Sarver, 309 F Supp 362 affirmed in 442 F Supp 362, the Court, dealing with the obligation of the State to maintain a Penitentiary System which did not violate the Eighth Amendment aptly and eloquently said :
'Let there be no mistake in the matter, the obligation of the respondents to eliminate existing unconstitutionalities does not depend upon what the Legislature may do, or upon what the Governor may do, or, indeed upon what respondents may actually be able to accomplish. If Arkansas is going to operate a Penitentiary System, it is going to have to be a system that is countenanced by the Constitution of the United States.' The State cannot avoid its constitutional obligation to provide, speedy trial to the accused by pleading financial or administrative inability. The State is under a constitutional mandate to ensure speedy trial and whatever is necessary for this purpose has to be done by the State. It is also the constitutional obligation of this Court, as the guardian of the fundamental rights of the people, as a sentinel on the qui vive, to enforce the fundamental right of the accused to speedy trial by issuing the necessary directions to the State which may include taking of positive action, such as augmenting and strengthening the investigative machinery; setting up new courts, building new court houses, providing more staff and equipment to the courts, appointment of additional Judges and other measures calculated to ensure speedy trial. We find that in fact the courts in the United States have adopted this dynamic and constructive role so far as the prison reform is concerned by utilising the activist magnitude of the Eighth Amendment. The courts have ordered substantial improvement to be made in a variety of archaic prisons and jails through decisions such as Holt v. Sarver 309 F Supp 362 (supra), Jones v. Wittenberg, 330 F Supp 707; Newman v. Alabama, 349 F Supp 278; and Gates v. Collier, 349 F Supp 881. The Court in the last mentioned case asserted that it 'has the duty of fashioning a decree that will require defendants to eliminate the conditions and practices at Parchman hereinabove found to be violative of the United State's constitution' and in discharge of this duty gave various directions for improvement of the conditions of those confined in the State Penitentiary, The powers of this Court in protection of the constitutional rights are of the widest amplitude and we do not see why this Court should not adopt a similar activist approach and issue to the State directions which may involve taking of positive action with a view to securing enforcement of the fundamental right to speedy trial. But in order to enable the Court to discharge this constitutional obligation, it is necessary that the Court should have the requisite information bearing on the problem."
(Square bracketed portion supplied)
18. The learned Counsel for the respondent-accused brought to our notice the Full Bench decision of the Patna High Court in State v. Maksudan Singh, . In that case the Full Bench of the Patna High Court, relying on the Supreme Court decision, held that under Art. 21 of the Constitution of India the accused has a fundamental right of having speedy trial. It also held that inordinately prolonged and callous delay of ten years or more occasioned entirely by the prosecution's default, in the context of reversal of clean acquittal on a capital charge, would be per se prejudicial to the accused. P.S. Sahay, J., who was one of the Members of the Full Bench, took a contrary view and held that Art. 21 of the Constitution only lays stress on "procedure established by law" and even after acquittal by the trial Court appeal is admitted and if it is not disposed of according to the procedure laid down, then there will be a clear violation of the "procedure established by law". According to the learned Judge, in that view of the matter, fixing of ten years will be contrary to the provisions of the Constitution as well as the Criminal P.C. The Patna High Court in a subsequent Full Bench decision in Madheshwardhari Singh v. State of Bihar, , reiterated that right to speedy public trial is a fundamental right under Art. 21 of the Constitution and it is available in all criminal proceedings and in all criminal prosecutions; irrespective of the nature of the offence involved. The learned Judges of the Full Bench of the Patna High Court also further held that the right to a speedy public trial is applicable not only to proceedings before the Court but also the police investigation preceding it. They have also ruled that the right to speedy public trial of criminal prosecutions is applicable equally to all stages, irrespective of the fact whether the proceedings are a trial or an appeal against acquittal. They laid down the outer limit for completion of investigation of trial in criminal prosecutions, except for the offences punishable with capital punishment or with R.I. for seven years. In that case the accused, a Government servant, was charged under sections 467, 409 and 120B I.P.C. Investigation and trial dragged on for 20 years. The delay was not due to the accused's default. There were no reasons for the exceptional delay. Under such circumstances, their Lordships held that the accused's right of speedy trial was violated and he was entitled to unconditional release. Accordingly, he was released, but at the same time it was made clear that his release would not affect the departmental proceedings instituted or contemplated against him.
19. The learned Counsel for the respondent-accused also relies on the decision in State of Bihar v. Ramdaras Ahir, 1985 Cri LJ 584. It is a decision of a Division Bench of the Patna High Court to which the learned Chief Justice S. S. Sandhawalia was a party. In that case there was a clean acquittal of the accused on a capital charge, and the appeal preferred by the State against that acquittal pended for about ten years. On the facts of that case the Division Bench of the Patna High Court held that a callous and inordinately prolonged delay of ten years or more which, in no way arises from the accused's default (or is otherwise not occasioned due to any extraordinary and exceptional reasons), in the context of the reversal of a clean acquittal on a capital charge, would plainly violate the constitutional guarantee of a speedy trial under Art. 21 of the Constitution. The Division Bench further held that any procedure or practice which allows such horrendous delays cannot but be labelled as oppressive, arbitrary and fanciful. Their Lordships of the Patna High Court at pages 598 and 599 of the report observed thus :-
"Herein we are concerned with the cases where the original trial has resulted in an acquittal thus reinforcing and doubling the presumption of innocence. The statutory appeal against the same is only a continuation of the trial and a reversal thereof after a callous inordinate delay brings sharply into focus the constitutional right to a speedy trial and the dehumanising aspects thereof when the charge is a capital one with the threat of death brooding over the accused person ......
"Before parting with this judgment, even at the risk of some repetition, it seems necessary to point out, for clarity of precedent, that the aforesaid discussion must not be viewed as any general dissertation on the reversal of any and every acquittal. It is patently in the context of a capital charge for which the Legislature provides either the sentence of death or of life imprisonment only in the alternative. It is only against the backdrop of a challenge to or reversal of a clean acquittal on a capital charge (i.e. not merely a State appeal against acquittal on a major charge), which involves the onerous setting aside of a double presumption of innocence, which runs like a golden thread throughout the web of our criminal jurisprudence. As elaborated earlier, it is in the mosaic of statutory appeals provided against acquittal which renders the proceeding nothing but a continuation or prolongation of a trial on a charge of an offence punishable with death. What has been said in the earlier part of this judgment is confined to the parameters of the aforesaid conditions. Equally, in the context of time limit which may be imposed, the same must operate within the qualifications laid down by the final Court in Sher Singh's case 1983 Cri LJ 803 (SC) (supra). The delay must not be occasioned due to the absconding or the default of the accused, nor must it run against the reasonable norm of time generally occupied in the litigative process and also must take not of the nature and the gravity of the crime.
"In the light of the above, I am firmly inclined to the view that of callous and inordinately prolonged delay of 10 years or more, which, in no way arises from the accused's default (or is otherwise not occasioned due to any extraordinary and exceptional reasons), in the context of the reversal of a clean acquittal on a capital charge, would plainly violate the constitution) guarantee of a speedy trial under Art. 21. Any procedure or practice which allows such horrendous delays cannot but be lebelled as oppressive, arbitrary and fanciful. Indeed I am somewhat hesitant in spelling out the aforesaid time limit, which perhaps errs on the side of strictitude. However, considering the fact that herein one seems to be breaking new grounds, 1 would wish to rest content with the same ......
"Now, applying, the above, it is common ground that the occurrence took place as far back as on 11-4-1909 and the lis has entered in its 16th year. The respondents were arrested soon thereafter and following varying periods of confinement were granted bail. They bore the harrowing ordeal of the prolonged investigation and trial, culminating in their acquittal more than 7 years later, on 31-7-1976. Thereafter they have been under the cloud of a challenge to their acquittal for nearly 8 years. It is not, even remotely, anybody's case that the delay in the trial or in the hearing of the appeal can at all, even for a moment, be laid at the door of the respondents. There has been no absconding or any other obstructive tactics of the accused persons which can at all be pointed out, far from being established. In the context of the capital crimes the offence was a common place one originating from, a petty altercation betwixt school boys and resulting in a transaction of mutual assault in which injuries were suffered on either side, some of which proved fatal. It is manifest that the case of the respondents comes squarely within the rule enunciated above. Their constitutional right to speedy trial by a fair, just and reasonable procedure now guaranteed by Art. 21 of the Constitution stands plainly violated. As noticed earlier, the only relief to which they are entitled in such circumstances is that the charges levelled against their must fall to the ground and their acquittal must be maintained.".
Their Lordships further added that even on a factual appraisal of the case, they found not the least modicum of merit in the said appeal challenging the findings of the trial Court, and the Government appeal against acquittal was dismissed.
20. The learned Counsel for the respondent-accused also referred to the decision of the Supreme Court in Kadra Pehadiya v. State of Bihar, , in support of his contention that a speedy trial is a fundamental right of an accused under Article 21 of the Constitution of India. In that case the accused were arrested in November December 1972. They were committed to Sessions Court for trial on 2nd July 1974. The trial commenced on 30th August 1977. It was not complete though eight years had elapsed. One Dr. Vasudha Dhagamwar, a researcher and social scientist working in the Santhal Parganas of the State of Bihar, addressed a letter dt. 28th November 1980 to the Supreme Court and it was treated as a writ petition. Their Lordships of the Supreme Court at pages 940 and 941 of the report (AIR) : (at p. 482 of Cri LJ) observed thus :-
"This [that is, taking a period of three years for the trial to begin after the committal to the Court of Session] discloses a shocking state of affairs. There is something wrong with the entire system. How can any civilized society tolerate a legal and judicial system which keeps a person in jail for three years without even commencing his trial. But the atrocity does not end here : more is yet to come. Though the trial of the petitioners commenced on 30th August 1977, it was merely a symbolic commencement, for it never proceeded further and it has not yet made any progress. The petitioners appeared in the Sessions Court on 30th August 1977, but thereafter Dr. Vasudha Dhagamwar a researcher and social scientist working in the Santhal Parganas of the State of Bihar] says, they have not been, in Court again. Three more years have passed, but they are still rotting in jail, not knowing what is happening to their case. They are perhaps reconciled to their fate, living in a small world of their own cribbed, cabinet and confined within the four walls of the prison. The outside world just does not exist for them. The Constitution has no meaning and significance and human rights, no relevance for them. It is a crying shame upon our adjudicatory system which keeps men in jail for years on end without a trial. We had occasion in Hussainara Khatoon's case, (supra) to criticise this shocking state of affairs and we hoped that after the anguish expressed and the severe strictures passed by us, the justice system in the State of Bihar would improve and no one shall be allowed to be confined in jail for more than a reasonable period of time, which we think cannot and should not exceed one year for a Sessions Trial, but we find that the situation has remained unchanged and these four petitioners, who entered the jail as young lads of 12 or 13, have been languishing in jail for over eight years for a crime which perhaps ultimately they may be found not to have committed. It is obvious that after so many years of incarceration awaiting trial, either their spirit must be totally broken or they must be seething with anger and resentment against the society. We fail to understand why our justice system has become so dehumanised that lawyers and Judges do not feel a sense of revolt at caging people in jail for years without a trial. It is difficult to comprehend how the Sessions Judge could have forgotten that he had called the petitioners to the Court for commencement of the trial on 30th August 1977 that is, more than three years after the case was committed to the Court of Session) and thereafter done nothing in the matter. We pointed out in Hussainara Khatoon's case that speedy trial is a fundamental right of an accused implicit in Art. 21 of the Constitution, but we notice that in the case of these four petitioners this fundamental right has merely remained a paper promise and has been grossly violated. It is surprising that these four petitioners should not have been released on bail despite our observations in Hussainara Khatoon's case. Since the trial has not made any progress for the last over eight years, we direct the Sessions Judge, Dumka, to take up the case against these four petitioners immediately and to proceed with it from day to day without any interruption."
(Square bracketed portions supplied.) In that case though the accused were rotting in the jail for eight years and their trial at the Sessions Court had not made sufficient progress even after such a long period, the Supreme Court has not quashed the proceedings on the ground that the fundamental right of the accused under Art. 21 of the Constitution has been violated.
21. The learned counsel for the respondent-accused referred to the decision of the Supreme Court in S. Guin v. Grindlays Bank Ltd., . In that case a complaint was filed before the Chief Metropolitan Magistrate, Calcutta, by one Manindra Narayan Choudhury, Operation Manager of the Grindlays Bank Ltd., against 12 appellants for offences punishable under S. 341, I.P.C. and S. 36AD of the Banking Regulation Act. After trial the Magistrate by his judgment dt. 27th June 1978 acquitted all the appellants. Against the said judgment of acquittal an appeal was filed by the Grindlays Bank Ltd. before the Calcutta High Court, being Criminal Appeal No. 315 of 1978. The said appeal came to be disposed of after nearly six years on 19th December 1984. The High Court felt that the trial Court had missed the essence of the offences with which the appellants had been charged and there was failure of justice. Hence it set aside the judgment of acquittal passed by the Magistrate and remanded the case for retrial for offences punishable under S. 341 read with S. 34 or S. 149, I.P.C. Aggrieved by the decision of the High Court, the appellants preferred an appeal to the Supreme Court. Their Lordships of the Supreme Court, after going through the judgments of the two Courts below, at page 290 of the report (AIR) : (At p. 256 of Cri LJ) observed thus :-
"After going through the judgment of the Magistrate and of the High Court we feel that whatever might have been the error committed by the Magistrate, in the circumstances of the case, it was not just and proper for the High Court to have remanded the case for fresh trial, when the order of acquittal had been passed nearly six years before the judgment of the High Court. The pendency of the Criminal Appeal for six years before the High Court is itself a regrettable feature of this case. In addition to it, the order directing retrial has resulted in serious prejudice to the appellants. We are of the view that having regard to the nature of the acts alleged to have been committed by the appellants and other attendant circumstances, this was a case in which the High Court should have directed the dropping of the proceedings in exercise of its inherent powers under S. 482, Criminal Procedure Code even if for some reasons it came to the conclusion that the acquittal was wrong."
In this view of the matter, the Supreme Court allowed the appeal and restored the order of acquittal passed by the Metropolitan Magistrate, without expressing any opinion on the issues of fact and law involved in the case.
22. The learned counsel for the respondent-accused also relied on the decision of the Patna High Court in Ram Nath Roy v. State of Bihar, 1988 Cri LJ 324. It is the Division Bench decision of the Patna High Court to which the learned Chief Justice S. S. Sandhawalia was a party. In that case 35 writ petitions challenging the proceedings of the criminal trials on the basis of violation of fundamental right of speedy trial guaranteed by Art. 21 of the Constitution have been considered and decided. Some of the writ petitions were allowed and investigation and trial against those petitioners were quashed. Some writ petitions were dismissed on the ground that the petitioners themselves materially contributed to the delay in the trial. Their Lordships of the Patna High Court referred to the Full Bench decision of that Court in Maksudan Singh's case, (1985 Cri LJ 1782) (supra) and reproduced a passage from that decision. Apart of that passage at page 329 of the report reads thus :-
"To conclude on this aspect, the answer to question No. 5 is rendered in the affirmative and it is held that an outer time limit to concretise the right to speedy public trial is envisioned both by principle and precedent. It is further held that a callous and inordinately, prolonged delay of seven years or more (which does not arise from the default of the accused or is otherwise not occasioned by, any extraordinary or exceptional reason) in investigation and original trial for offences other than capital ones would plainly violate the constitutional guarantee of a speedy public trial under Art. 21."
Their Lordships of the Patna High Court also sought support to their view from the decision of the Supreme Court in Sheela Barse v. Union of India, . Their Lordships in the case of Sheela Barse; in the context of the trial of children for criminal offences, laid down a time frame, not in years only but in months, and yet again not for trials alone, but even for investigations and for filing the complaints or charge-sheets in court, in the following terms (para 12) :-
"We would also direct that where a complaint is filed or first information report is lodged against a child below the age of 16 years for an offence punishable with imprisonment of not more than 7 years, the investigation shall be completed within a period of three months from the date of filing of the complaint or lodging of the first information report, and, if the investigation is not completed within this time, the case against the child must be treated as closed. If within three months the charge-sheet is filed against the child in case of an offence punishable with imprisonment of more than 7 years, the case must be tried and disposed of within a further period of 6 months at the outside and this period should be inclusive of the time taken up in committal proceedings, if an .... we would direct every State government to give effect to this principle or norm laid down by us in so far as any further cases are concerned, but so far as concerns pending cases relating to offences punishable with imprisonment of not more than 7 years, we would direct every State Government to complete the investigation within a period of 3 months from today (that is, from 16th January 1987) if the investigation has not already resulted in filing of charge-sheet and if a charge-sheet has been filed, the trial shall be completed within a period of 6 months from today and if it is not, the prosecution shall be quashed."
Their Lordships of the Patna High Court observed that lest it be misunderstood that the above observations of the Supreme Court were confined to the case of children alone, they quoted the following observations of the Supreme Court from the said judgment, reiterating the earlier view with regard to the other criminal trials as well :-
"We have already held in Hussainara Khatoon v. Home Secy., State of Bihar, [supra] that the right to speedy trial is a fundamental right implicit in Art. 21 of the Constitution. If an accused is not tried speedily and his case remains pending before the Magistrate or the Sessions Court for an unreasonable length of time, it is clear that his fundamental right to speedy trial would be violated unless, of course, the trial is held up on account of some interim order passed by a superior court or the accused is responsible for the delay in the trial of the case. The consequence of violation of the fundamental right to speedy trial would be that the prosecution itself would be liable to be quashed on the round that it is in breach of the fundamental right."
Their Lordships of the Supreme Court in Sheela Barse's case (supra), at pages 1778 and 1779 of the report (AIR) : (At p. 1741 of Cri LJ), after reiterating the fundamental right of an accused under Art. 21 of the Constitution to have a speedy trial, observed thus :-
"One of the primary reasons why trial of criminal cases is delayed in the courts of Magistrates and Additional Sessions Judges is the total inadequacy of judge-strength and lack of satisfactory working conditions for Magistrates and Additional Sessions Judges. There are courts of Magistrates and Additional Sessions Judges where the workload is so heavy that it is just not possible to cope with the workload, unless there is increase in the strength of Magistrates and Additional Sessions Judges. There are instances where appointments-of Magistrates and Additional Sessions Judges are held up for years and the courts have to work with depleted strength and this affects speedy trial of criminal cases. The Magistrates and Additional Sessions Judges are often not provided adequate staff and other facilities which would help improve their disposal of cases. We are, therefore, firmly of the view that every State Government must take necessary measures for the purpose of setting up adequate number of Courts, appointing requisite number of Judges and providing them the necessary facilities. It is also necessary to set up an Institute or Academy for training of Judicial Officers so that their efficiency may be improved and they may be able to regulate and control the flow of cases in their respective courts. The problem of arrears of criminal cases in the courts of Magistrates and Additional Sessions Judges has assumed rather disturbing proportions and it is a matter of grave urgency to which no State Government can afford to be oblivious. But here, we are not concerned with the question of speedy trial for an accused who is not a child below the age of 16 years. That is a question which may have to be considered in some other case were this Court may be called upon to examine as to what is reasonable length of time for a trial beyond which the Court would regard the right to speedy trial as violated."
Thus the question which was posed by the Supreme Court in Hussainara Khatoon's case (supra) in the year 1979 was not answered even in Sheela Barse's case (supra) in the year 1986, and we are told the same question is actively pending before the Supreme Court. In a recent decision of the Supreme Court in V. K. Agarwal v. Vasantraj Bhagwanji Bhatia, AIR 1988 SC 1106, which was the case under the Customs Act, 1962; and the Gold (Control) Act, 1968, it was contended that about 20 years had elapsed since the date of the seizure, namely, 15th November 1968, and there being an inordinate delay for the prosecution of the respondenes-accused, the prosecution of the respondents for the offence under the Gold (Control) Act should be dropped. While repelling the respondents contention, their Lordships of the Supreme Court observed thus at page 1111 of the report :-
"The High Court was therefore in error in holding that subsequent trial was barred. We accept the appeal on this point and reverse the decision of the Courts below and the High Court. The appellant was understandably seriously aggrieved by the erroneous enunciation of law by the High Court as it would cause prejudice in other matters involving the same point which may have been pending or might arise in future. With the position of law being now settled in the appellant's favour the main objective of the appellant is achieved. Learned counsel for the appellant indicated at the very commencement that the main purpose of the appeal was to have the true position in law settled. That 20 years have elapsed since the date of the seizure (November 15, 1968) is, in our opinion, no ground for not proceeding further with the matter inasmuch as the offence in question is a serious economic offence, which undermines the entire economy of the Nation. The delay occasioned in the working of the judicial system, by the ever increasing workload cannot provide an alibi for upholding such a plea."
Though in that case the proceedings were not dropped on the ground of delay, the order of the Sessions Judge qaushing the proceedings on factual findings was maintained and no trial of the accused or the offence under the Gold (Control) Act was held. The Supreme Court in T. J. Stephen v. M/s. Parle Bottling Co. (P) Ltd., , which was an appeal against the decision of the learned single Judge of this Court, reversed the order of this Court quashing criminal proceedings against the accused 2 - managing director of the private limited company which was the accused 1. At the same time, as 20 years had elapsed since the commission of the offence, the Supreme Court directed that the case be closed against the managing director, and while closing the case against the accused No. 2 the Supreme Court ordered the respondent 2 - managing director to pay the exemplary costs of Rs. 10,000/-. In this connection, their Lordships of the Supreme Court at page 996 of the report observed thus :-
"Once the order of the High Court is vacated the order of the learned Magistrate would revive and the prosecution as directed by the learned Magistrate has now to continue. The petition of the complainant at page 21 of the paper-book shows that the offence was committed between 1967 and 1969 which is some 20 years back. While we have no sympathy for the respondent 2 and we are clearly of the opinion that he has no equity in his favour and the delay after the complaint had been filed has been mostly on account of his mala fide move, we do not think it would be in the interest of justice to allow a prosecution to start 20 years after the offence has been committed. If we could convict the respondent 2 in accordance with law, we would have been prepared to do so taking the facts of the case and conduct of the respondent into consideration but that would not be possible within the framework of the law of procedure. We, therefore, do not propose to allow the learned Magistrate to proceed with the trial of the case at this belated stage."
23. On considering the various decisions cited by the learned counsel for the respondent-accused and also other decisions of the Supreme Court noticed by us, we find that it is now well established that speedy trial is a fundamental right of an accused under Art. 21 of the Constitution. Though the question us to what delay should he considered sufficient to hold that the fundamental right of an accused has been infringed has been posed by the Supreme Court, that question has not been yet answered by the Supreme Court. Though the learned counsel for the respondent-accused contends that we should indicate some period reasonable for the investigation, trial and appeals, in criminal eases to be completed, we are not posted with the data so as to enable its to pronounce the reasonable period for investigation, trial and decisions of appeals Cri criminal cases which if exceeded should be considered as violation of the fundamental right of an accused under Art. 21 of the Constitution. On going through the various decisions of the Patna High Court and of the Supreme Court discussed above, we find that in each case, taking into consideration the nature of the offence, the time taken for investigation, the title taken for trial and the time taken for the hearing of the appeal, the part played by the accused in delaying the proceedings and other circumstances attending the crime and also the subsequent events, the courts, when found that there has been an undue delay in the above processes involved in the criminal trial for which the accused is not responsible and the same has caused or, is likely to cause injustice or prejudice to the accused, either under the inherent powers under S. 482, Cr.P.C. or on account of violation of the fundamental right of speedy trial under Art. 21 of the Constitution, either quashed the Criminal proceedings or dropped the further proceedings and maintained the acquittal which was recorded by the courts below considerably long time before the appeals against acquittals came up for hearing. According to us, such an action is fully in conformity with the spirit of the provisions of our Constitution and the Code of Criminal Procedure which provides procedure for speedy trial of an accused.
24. The laws delays are proverbial, but now the dimensions of delays have reached such proportion that even the Apex Court in International Airport Authority of India v. K. D. Bali, of the report observed thus :-
"We are in agreement with the learned Judge of the High Court expressing unhappiness as to the manner in which attempts had been made to delay the proceeding. There is a great deal of legitimate protest at the delay in judicial and quasi judicial proceeding. As a matter of fact, delay in litigation in Courts has reached such proportion that people are losing faith in the adjudicatory process."
The speedy trial of the accused charged with serious offences punishable with capital sentence of imprisonment for life is not only for the benefit of the persons accused of such offences but it is also for the benefit of the society in general. In the past there were religious and social sanctions which served as check on the person, temperamentally inclined to commit offences, not to indulge in the anti-social activities, but wife the all-round change in moral values and ethical standards, the impact of religious and social sanctions has been considerably reduced, if not totally withered away. The only sanction now for the persons temperamentally inclined to commit offences is the sanction of the punishment by the Courts. Therefore, for the protection of the citizens it is necessary that those who commit serious offences affecting the life, liberty and property of the citizens are expeditiously brought to book and adequately punished by the courts. At the same time the speedy trial is the fundamental right of the accused under Art. 21 of the Constitution. If an accused person is required to face the torture of the investigation, trial and appeals for decades, it results into serious curtailment of his right to life and personal liberty. If the accused person happens to be innocent, which is presumed-under our system of administration of criminal law, and has to undergo the torture of investigation, trial and appeals for years together before he is acquitted, he is put to an irreparable injury and our criminal system does not provide for any compensation to such person. Therefore, it is very necessary that there should be speedy trial of the accused persons. In order to have the speedy trial of the accused the State Government, the High Court, the members of the Subordinate Judiciary and the members of the Bar have to make concerted efforts in that direction. All of them must be alive to their obligations under the Constitution of having speedy trial of an accused and must strive hard to fulfill their obligations. At present the situation in our State is very disturbing. The criminal cases in the trial Courts are pending for years together and the accused persons have to attend those Courts for a number of times before their cases reach effective hearing. Even at the trial stage the prosecution sometimes do not keep the witnesses present and the cases have to be adjourned even at the trial stage and the trial drags on for months and years. The position in the appeal courts is also not happy. In the High Court the appeals wherein the accused are on bail and also the appeals against the acquittals generally reach hearing after an unduly long lapse of time ranging from five to ten years. Thus the position of the administration of criminal justice is far from satisfactory, as the matters are not decided with the expected speed and within reasonable time. As stated earlier, we, without the fall data before us, cannot laydown what should be reasonable time within which investigation, trial and appeals should be completed. Every case will have to be decided on the facts of that case, bearing in mind that the accused have a fundamental right of speedy trial under Art. 21 of the Constitution.
25. Applying the principles and the norms indicated above, it is necessary to consider whether in the present case the fundamental right of the respondent-accused under Art. 21 of the Constitution has been violated. The incident took place on 9th October 1978. After completing the investigation, charge-sheet was filed against the accused in the Court of the Metropolitan Magistrate and the case was committed to the Court of Session on 6th February 1979. Charge was framed against the accused by the learned Additional Sessions Judge on 12th June 1980 and the trial commenced and was completed on 16th July 1980, when the accused was found guilty of the offence under the second part of S. 304, I.P.C. and sentenced to suffer R.I. for three and a half years. Thereafter the State preferred the present appeal in November 1980 and it was committed by this Court on 23rd March 1981. Till then it cannot be said that there was any delay either in investigation or in the trial of the accused. The delay is only in the hearing of the appeal. The appeal admitted in March 1981 came up for hearing for the first time before us on 21st June 1988, that is, after a period of seven years and three months. This is not the case in which there was a clear acquittal of the accused in the trial Court. The accused was found guilty of culpable homicide of his wife. He was acquitted by the trial Court of the charge of murder under S. 302, I.P.C. and instead he was convicted of the offence under the second part of S. 304, I.P.C. for causing the death of his wife. From the mere fact that ten years have elapsed after the date of the incident and that the appeal pending in this Court for about eight years for no fault of the prosecution, it cannot be held that there was violation of the fundamental right of the accused of speedy trial under Art. 21 of the Constitution and on that ground the proceedings in the appeal cannot be dropped. At the same time we find that in the present case the accused was sentenced by the trial Court to R.I. for three and a half years under the second part of S. 304, I.P.C. and the accused has undergone the sentence. After he was released from the prison, in view of his conviction, he lost his job and he had to shift to his native place. The accused appeared before us and stated that after shifting to his native place he took to agriculture. He also contracted a second marriage and has a child from his second wife. Under such circumstances, we do not consider it proper to convict the accused of the offence under S. 302, I.P.C. and send him again to the prison, to suffer an imprisonment for life.
26. Consequently, in the peculiar circumstance of the case which may not be treated precedent, though we find that the trial Court committed a patent error in not applying the law correctly to the established facts, we refrain ourselves from interfering with the acquittal of the respondent-accused on the charge under S. 302, I.P.C. recorded by the learned Additional Sessions Judge and dismiss the appeal. The bail bond of the respondent shall stand cancelled.
S. C. PRATAP, J. :- 27. Anxiously considering the pros and cons we have, after extensive internal discussion and debate, come to this, judgment. Much of what I wanted to state has been said or followed from what has been said therein. It is needless, therefore, to enter into the exercise of a separate albeit concurring judgment. However, on an occasion as this, a few words may be forgiven.
28. That speedy trial is a fundamental right is now settled beyond doubt by binding precedents of the highest Court in the land. The ends of justice and the paramount sanctity of fundamental rights transcend the comparatively limited aims of criminal jurisprudence. Fundamental rights do not part with the prisoner in the dock. And yet, regrettably enough, the constitutional implications of the prolonged delay in the administration of criminal justice continue to be overlooked. In the context, the 'spectre' of the sentence of life or death - indeed, the brooding horror of life ruled by a possible sentence of death - hovering over a prisoner for years on end, like punishment over punishment and sentence over sentence as it were, is a situation truly anathema to our constitutional guarantee.
29. And yet - notwithstanding that delay has assumed truly alarming proportions - there is and can be no strait-jacket formula on the precise time lag (for which the prisoner is not responsible) that would render a trial or an appeal thereafter, a breach of the prisoner's fundamental right under Art. 21 of the Constitution. That question and the answer thereto is best left undefined and flexible depending upon the Widely fluctuating facts and circumstances from case to case, the present appeal being only illustrative of the situation. Besides, rigidity tends to obliterate court's judicial discretion. However, all relevant considerations must enter the decision making judicial process and the final verdict in that behalf.
30. Though the prisoner here stands convicted in any event by his own conscience, one must nevertheless confess to judicial uneasiness at not interfering in this acquittal appeal despite the charge and the guilt being established beyond reasonable doubt. But then, that is the price the system pays for the notorious delays which are almost co-extensive with the better part of a prisoner's life. Life that vacillates between hope and despair all the time till the proceedings in all its hierarchy finally conclude. And it is the price that may as well mitigate, to an extent, the infraction of the prisoner's fundamental right to a speedy trial.
31. Yes, the judgment does seem to be breaking new ground. But if only it helps a critical appraisal of the machinery of criminal justice which today unfortunately is at a low water mark and if only it assists in the evolution of the law in this field, the effort would not be have been in vain.
32. We must, before parting, record our appreciation of the research and labour put into the matter by Mr. S. G. Deshmukh, learned Advocate appointed for the accused. The judgment, and the authorities considered therein by us, bear testimony thereto. He also deserves commendation for advancing a refreshing line of thought, acceptance whereof has resulted in confirming the acquittal. May his example of devotion to work be emulated by junior members of the Bar looking forward to a successful career in this highly competitive profession of law.
33. Appeal dismissed.