Patna High Court
Amar Nath Mahto & Anr vs The State Of Bihar on 1 August, 2017
Author: Aditya Kumar Trivedi
Bench: Aditya Kumar Trivedi
Patna High Court CR. APP (SJ) No.936 of 2016 1
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (SJ) No.936 of 2016
Arising Out of PS.Case No. -57 Year- 2010 Thana -DIGHA District- PATNA
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1. Amar Nath Mahto, S/o Late Sita Ram Mahto,
2. Usha Devi, W/o Mahadeo Mahto, both resident of village-Dighaghat Patlipul,
P.S. Digha, District-Patna.
.... .... Appellant/s
Versus
The State of Bihar
.... .... Respondent/s
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Appearance :
For the Appellant/s : Mr. Pramod Kumar-Advocate
For the Respondent/s : Mr. Sujit Kumar Singh-A.P.P.
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CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI
CAV JUDGMENT
Date: 1-08-2017
Both the appellants namely Amar Nath Mahto and Usha
Devi have been found guilty for an offence punishable under Section
304B/34 of the I.P.C. vide judgment of conviction dated 09.09.2016
and each one has been sentenced to undergo rigorous imprisonment
for 10 years with a further direction to set off in terms of Section 428
of the Cr.P.C. with regard to custodial period spent during course of
trial vide order of sentence dated 16.09.2016 passed by the Additional
Sessions Judge-4th, Patna in Sessions Trial No.1459 of 2013.
2. The factual matrix of the case as is evident on the basis
of the fard-bayan of Saroj Devi (PW-9) on 02.03.2010 at P.M.C.H.
before police officials of Pirbahore P.S. is that her daughter Aarti
Devi was married with Dharmendra Mahto, son of Amar Nath Mahto.
On 19.02.2010 at about 6.00 p.m. father in-law Amar Nath Mahto,
Patna High Court CR. APP (SJ) No.936 of 2016 2
Usha Devi, Fufia Sas and Chachia Sas lit fire over her body after
sprinkling kerosene oil for the dowry. After coming to know about the
same, she rushed and found her daughter badly burnt. Till then, her
son-in-law, who happens to be driver also arrived and then, all of
them admitted her at P.M.C.H. where she succumbed on 02.03.2010
during course of treatment. It has also been divulged that statement of
her daughter had already been recorded by the Pirbahore P.S. at an
earlier occasion at P.M.C.H. itself. It has also been disclosed that for
the last three days her son-in-law had also left her daughter.
3. The aforesaid fard-bayan was forwarded to Digha P.S.
on the basis of which, Digha P.S. Case No.57 of 2010 was registered
on 08.03.2010, followed with an investigation as well as submission
of chargesheet paving the way of trial, which ultimately concluded
with finding of guilt and sentence against appellants, put under
challenge.
4. The defence case as is evident from mode of cross-
examination as well as statement recorded under Section 313 of the
Cr.P.C. is that of complete denial of the occurrence in a way as
narrated by the prosecution. Furthermore, it has also been pleaded that
deceased set ablaze herself after locking the door under suicidal
approach out of reason best known to her whereupon was rescued
after breaking the door, shifted to hospital immediately for treatment
Patna High Court CR. APP (SJ) No.936 of 2016 3
during course of which, unfortunately she died. However, neither oral
nor documentary evidence has been adduced in support thereof.
5. In order to substantiate its case, prosecution had
examined altogether ten PWs, out of whom, PW-1 Shankar Mahto,
PW-2 Rajendra Prasad Mehta, PW-3 Kashi Mahto, PW-4 Sanjay
Kumar @ Sanju, PW-5 Ranjit Mahto @ Ranju, PW-6 Madan Mishra,
PW-7 Kumari Kanchan Sinha, PW-8 Dr. Arvind Kumar, PW-9 Saroj
Devi and PW-10 Dharmendra Mahto. Side by side, had also exhibited
the documents as Exhibit-1 statement of deceased, Aarti Devi, (dying
declaration), Exhibit-2 and 2/1 post mortem report.
6. Though, as per roster appeal of the Year 2015 is being
taken up for hearing, but considering the legal intricacies involved in
this appeal so perceived during course of argument having made on
behalf of appellants over their plea of bail, this appeal has been
directed to be listed out of turn and accordingly, been heard.
7. From the record, it is evident that in the written report,
there happens to be insertion in different pen concerning dowry
which, keeping away for a moment, being confronted to the appellant
on the score that having absence of date of marriage, demand of
dowry, torture or cruelty meted out to the deceased since before her
death by husband or relative of the husband, would not have justified
in sailing of the trial under Section 304B/34 of the I.P.C. and in
Patna High Court CR. APP (SJ) No.936 of 2016 4
likewise manner, the statement of the victim which, on account of her
death became dying declaration suggesting that on account of
opposing the lascivious demand of her father-in-law to indulge in
illicit relationship, she has been put on fire by the accused persons
coupled with direction of the Hon'ble Apex Court to frame charge in
an alternative under Section 302 of the I.P.C., whenever there happens
to be case of dowry death and for that, the judgment was to be
circulated to trial Court all over in India in Rajvir @ Raju and
another vs. State of Haryana reported in (2010) 15 SCC 116, which
has also been reaffirmed in a case reported in Jasvinder Saini v. State
(Govt. of NCT of Delhi) reported in (2013) 7 SCC 256, the learned
counsel for the appellants has been requested to assist the Court in
order to just decision of the appeal apart from arguing the appeal on
its merit, how far non-obedience of the direction of the Hon'ble Apex
Court by the trial Court failing to frame alternative charge which, in
the facts and circumstances of the case mentioned above, was more
appropriate followed with remedial steps to be taken thereupon, the
learned counsel for the appellants as well as learned Additional Public
Prosecutor lucidly argued the matter.
8. Learned counsel for the appellants firstly submitted
that the judgment impugned on its face suggest that the learned lower
Court had acted in a mechanical way than judicious manner and that
Patna High Court CR. APP (SJ) No.936 of 2016 5
happens to be reason behind that he failed to appreciate that case of
the prosecution was deficient relating to the dowry death. To
substantiate the same, it has been submitted that save and except
informant, PW-9, none had deposed on that very score. Furthermore,
other family members of the informant, PW-9 did not oblige her by
way of their presence during trial. It has also been submitted that her
evidence (PW-9) suffers from exaggeration, contradiction,
development so much so failed to substantiate the mandatory
requirement of law in order to constitute a case of dowry death. That
being so, the conviction and sentence recorded by the learned lower
Court relating thereto is absurd and fit to be set aside.
9. Though the learned counsel for the appellants did not
opt to enlighten the issue in the light of aforesaid finding of the
Hon'ble Apex Court. Contrary to it, tried to full advancing alternative
argument magnifying the deficiencies persisting in the prosecution
case. It has also been argued that at the present moment, appellate
Court should not indulge in futile exercise in tracing out the impact
over trial by non-observance of direction of the Apex Court as such,
exercise will tantamount to crippling interest of the appellants,
illegally against the settled principle of law.
10. The learned counsel intelligently drew attention
towards Section 386 of the Cr.P.C. and submitted that the Appellate
Patna High Court CR. APP (SJ) No.936 of 2016 6
Court during course of exercising such power should firstly consider
the evidence on record whereupon either acquit or discharge, in case
the evidence happens to be deficient one. This happens to be intention
of the legislature, and that happens to be reason behind keeping the
same at first ladder of exercising the appellate power and if not, then
other options have been prescribed including that of the re-trial. In toe
thereof, the learned counsel for the appellants has submitted that
because of the fact that from the evidence available on the record, no
case under Section 304B/34 of the I.P.C. is found duly substantiated,
on account thereof, the judgment impugned should be set aside
instead of peeping for other option. The other rudimentary issue
which the Court has perceived on its own after going through the
record should not be taken as a hurdle in due discharge of appellate
jurisdiction during course of allowing the appeal. To substantiate such
plea, relied upon State of Karnataka vs. Dattaraj and others reported
in A.I.R. 2016 SCW 882.
11. It has also been submitted that Appellate Court
should not make a futile exercise as, such exercise is going to
jeopardize the interest of the appellants, who happen to be under
custody for such long period. The situation so visualized is an out
come of inefficiency of the trial judge, who failed to obey the
direction of the Hon'ble Apex Court in Rajvir @ Raju and another
Patna High Court CR. APP (SJ) No.936 of 2016 7
vs. State of Haryana reported in (2010) 15 SCC 116, wherein
appellants have no role to play and so, while considering the event of
re-trial, the interest of the appellants is also to be seen coupled with
whether on account of such lapses, miscarriage of justice has really
occurred.
12. The learned counsel for the appellants has drew
attention over the principle laid down by the Hon'ble Apex Court in
State of U.P. vs. Kapil Deo Shukla reported in (1972) 3 SCC 504,
...Ramanlal Rathi vs. the State reported in A.I.R. 1951 Calcutta
305, ...Machander vs. the State of Hyderabad reported in A.I.R.
1955 SC 792 and submitted that Court neither should act in partial
manner nor should allow an opportunity to the prosecution to fill up
lacuna, so persisting. Court has to maintain balance. In likewise
manner, the learned counsel also urged that accused should not be
penalized for the lapses having at the end of the Court as well as by
the prosecution.
13. Now, coming to miscarriage of justice, the learned
counsel for the appellants led much stress over the principle decided
by the Apex Court reported in Ajay Kumar Ghoshal Etc. vs. State of
Bihar and another reported in 2017(1) P.L.J.R 458 (SC) and
submitted that mere omission at the end of trial court would not, in
ordinary course of nature, suggests miscarriage of justice nor it could
Patna High Court CR. APP (SJ) No.936 of 2016 8
be subject of abhorrence. Miscarriage of justice is an event
whereunder the whole proceeding is found coloured with some sort of
illegality adversely affecting upon the mode of trial and in likewise
manner, its ultimate result. Mere perceiving some sort of deficiency
while conducting the trial will not cover nor will come within the
ambit of miscarriage of justice. Apart from this, the learned counsel
for the appellants also drew attention towards case of Zahira
Habibulla H. Sheikh and another vs. State of Gujarat and others
reported in (2004) 4 SCC 158 and submitted that though a caution
has been given by the Apex Court to the effect that in ordinary course
of nature, it should not be referred as, the same has been passed
perceiving extra-ordinary situation persisting, justifying the same
directing retrial which, in the present facts and circumstances of the
case, did not find favour. Consequent thereupon, the same could not
be ordered. So, concluding the submission, has submitted that this
appeal be allowed after setting aside the judgment of conviction and
sentence impugned by way of acquitting the appellants.
14. On the other hand, the learned Additional Public
Prosecutor vehemently refuted the submissions having made on
behalf of appellants. It has been submitted that on account of
insincerity of the trial Court, the direction given by the Hon'ble Apex
Court has not been complied with and on account thereof, whole trial
Patna High Court CR. APP (SJ) No.936 of 2016 9
vitiates. The only option now available is to direct the trial Court to
proceed afresh (de novo trial) after framing alternative charge by
remitting the matter after setting aside the judgment of conviction and
sentence impugned. Furthermore, it has also been submitted that had
there been proper application of judicious mind at the end of the
learned trial Court at the stage of framing of charge and in likewise
manner, by conducting prosecutor such mistake would not have
occurred. That being so, the trial culminated to its logical end in
illegal manner, whereupon bound to face its ultimate result.
Furthermore, it has been submitted that present situation is same as
faced by the Hon'ble Apex Court in Zahira Habibulla H. Sheikh
and another vs. State of Gujarat and others reported in (2004) 4
SCC 158, so referred by the learned counsel for the appellants,
whereupon re-trial is only remedial recourse to be adopted. Learned
Additional Public Prosecutor further submits that Section 386 Cr.P.C.
amply empowers the appellate Court to set right the mistake
committed by the trial Court, specially Section 386(e) Cr.P.C.,
whereunder appellate Court may make any amendment or any
consequential or incidental order that may begust and proper apart
from having been entrusted with directing retrial.
15. Giving a pause before coming to discuss the legal
question involved in this appeal, first of all, glimpse of factual aspect
Patna High Court CR. APP (SJ) No.936 of 2016 10
is to be taken. Apart from evidence of PW-8, Dr. Arbind Kumar, all
the witnesses including husband (PW-10) have had substantiated the
cause of death due to ante-mortem burn injury. Furthermore, from the
evidence of PW-8, it is evident that no cross-examination has been
made on behalf of appellants in order to challenge the Exhibit-1,
statement of deceased Aarti Devi (dying declaration) whereupon
L.T.I. of her husband was by way of suggesting that due to severe
burn injuries, she might not be in a position to make any statement.
16. So far ocular evidence is concerned, it is evident
that none of them including informant had claimed to be an eye
witness to occurrence. PW-1, PW-2 have been declared hostile. PW-3
had stated that after hearing alarm, he rushed to the place of Shankar
Mahto and seen, there was fire inside house. Door was closed from
inside. Door was broken whereupon he saw daughter-in-law of
Shankar Mahto under fire. Some persons extinguished fire, taken to
doctor. At that very time, she was shouting, but voice was not clear.
He returned back to his place. This case has been instituted by the
mother of the deceased. During cross-examination at Para-3, he had
stated that he does not know how fire was broken.
17. PW-4, PW-5 are hearsay witness as they came to
know about the same after the occurrence. PW-10 is the husband of
deceased, who had deposed that Aarti Devi was married with him
Patna High Court CR. APP (SJ) No.936 of 2016 11
about 7-8 years ago. Since then, she was residing with him.
Occurrence is of month of February, 2010. At about 7.00 p.m., he
received information that his wife burnt while cooking. When he
reached at his house, he found his wife in burnt condition. She was
uttering slowly that during course of cooking, she caught fire.
Thereafter, she was taken to hospital. After admitting her at P.M.C.H.,
he had gone to Orissa. When he returned back, found all the
eventualities completed. When he admitted his wife, at that very time,
police had come, but returned back. This case has been registered by
his mother-in-law. He further stated that he had put his L.T.I. on blank
paper. During cross-examination, he had stated that all the family
members were living jointly. No quarrel had ever taken place. He had
further deposed that whenever dispute arose with his father, he got it
calm down. He had further stated that when he reached at his house
after being informed regarding occurrence, door was opened and she
was cooking food. He after admitting her, remained there. His mother-
in-law took his L.T.I. on the pretext of purchasing of medicine. Police
did not record statement of his wife in his presence. His wife was not
in a position to speak while she was admitted. His Fua never remained
with them. In Para-9, he had stated that when he reached at his house,
his wife had disclosed that during course of cooking, she caught fire.
Who done 'Shradh', he is unable to say. His father also resides in one
Patna High Court CR. APP (SJ) No.936 of 2016 12
of the rooms of same building.
18. PW-9 is informant. She had deposed that her
daughter Aarti was married 7-8 years ago with Dharmendra, S/o
Amarnath. When Aarti gone to her sasural, her father-in-law, mother-
in-law and Mausia mother-in-law began to torture her for dowry. Her
daughter begotten two children. Occurrence is 5-6 years ago. She got
information that her daughter is admitted at P.M.C.H. She went there.
All the members of her sasural were absent. Aarti had disclosed that
after pouring kerosene oil over her, father-in-law, mother-in-law and
Mausia mother-in-law lit fire. For the last three days, she was not
provided food. Aarti died at P.M.C.H. during course of treatment.
Police came and took her fard-bayan. Post mortem was conducted,
she conducted rituals. During cross-examination, she had stated that
after coming to know about occurrence, first of all, she had gone to
the place of her daughter where house was closed. She came to know
that daughter is admitted at P.M.C.H. She came to P.M.C.H. and
found her daughter completely burnt. None of accused was present. In
Para-9, she had stated that police had recorded statement of his
daughter in her presence as well as in presence of his son-in-law.
Same police had recorded her statement. In Para-10, she had deposed
that accused persons used to treat her daughter badly. At all occasions,
she used to send her daughter after getting her consoled. No complaint
Patna High Court CR. APP (SJ) No.936 of 2016 13
was made for the same. At Para-11, she had stated that accused
persons have informed her that as she fell down, therefore, she has
been admitted at P.M.C.H. Accused persons fled away from hospital.
When she reached at P.M.C.H., at that very time, her son-in-law was
present. Her son-in-law lives jointly with his father. She denied the
suggestion on that very score.
19. So from the evidences, it is abundantly clear that
the statement having been made by the deceased in presence of
husband (PW-10) has duly found substantiated. Though PW-10
wanted to explain that his L.T.I. was taken by his mother-in-law,
which is found completely ruled out from Para-9 of PW-1.
Furthermore, the theme of accidental fire has itself been tutored by the
PW-10. Furthermore, PW-10 also showed presence of accused
Amarnath in the same building, though being tenant of other room.
Furthermore, from Para-10 of PW-9, she on her own disclosed that the
the occurrence took place after 7-8 years of marriage.
20. All the Courts within the Indian Territory is bound
to obey the order of the Hon'ble Apex Court as laid down under
Article 141 of the Constitution of India. Furthermore, non-obedience
of the order will be subject to contempt under Article 129 of the
Constitution of India. In the aforesaid background, first of all, the
relevant direction of the Hon'ble Apex Court is to be seen. In Rajvir
Patna High Court CR. APP (SJ) No.936 of 2016 14
@ Raju and another vs. State of Haryana reported in (2010)15 SCC
116, the same has been directed in following way:-
"7. We further direct all trial Courts in India to
ordinarily add Section 302 to the charge of section
304B, so that death sentences can be imposed in
such heinous and barbaric crimes against women.
Copy of this order be sent to Registrar
Generals/Registrars of all High Courts, which will
circulate it to all trial Courts."
21. The aforesaid view has further been subject to
close scrutiny before the Hon'ble Apex Court in Jasvinder Saini &
others v. State (Government of NCT of Delhi) reported in (2013) 7
SCC 256, wherein it has been observed:-
"14. Be that as it may the common thread running
through both the orders is that this Court had in
Rajbir‟s case (supra) directed the addition of a
charge under Section 302 IPC to every case in
which the accused are charged with Section 304-B.
That was not, in our opinion, the true purport of
the order passed by this Court. The direction was
not meant to be followed mechanically and without
due regard to the nature of the evidence available
in the case. All that this Court meant to say was
that in a case where a charge alleging dowry death
is framed, a charge under Section 302 can also be
Patna High Court CR. APP (SJ) No.936 of 2016 15
framed if the evidence otherwise permits. No other
meaning could be deduced from the order of this
Court.
15. It is common ground that a charge under
Section 304B IPC is not a substitute for a charge of
murder punishable under Section 302. As in the
case of murder in every case under Section 304B
also there is a death involved. The question
whether it is murder punishable under Section 302
IPC or a dowry death punishable under Section
304B IPC depends upon the fact situation and the
evidence in the case. If there is evidence whether
direct or circumstantial to prima facie support a
charge under Section 302 IPC the trial Court can
and indeed ought to frame a charge of murder
punishable under Section 302 IPC, which would
then be the main charge and not an alternative
charge as is erroneously assumed in some
quarters. If the main charge of murder is not
proved against the accused at the trial, the Court
can look into the evidence to determine whether the
alternative charge of dowry death punishable
under Section 304B is established. The ingredients
constituting the two offences are different, thereby
demanding appreciation of evidence from the
Patna High Court CR. APP (SJ) No.936 of 2016 16
perspective relevant to such ingredients. The trial
Court in that view of the matter acted mechanically
for it framed an additional charge under Section
302 IPC without adverting to the evidence adduced
in the case and simply on the basis of the direction
issued in Rajbir‟s case (supra). The High Court no
doubt made a half hearted attempt to justify the
framing of the charge independent of the directions
in Rajbir‟s case (supra), but it would have been
more appropriate to remit the matter back to the
trial Court for fresh orders rather than lending
support to it in the manner done by the High Court.
16. In the light of what we have said above, the
order passed by the trial Court and so also that
passed by the High Court are clearly untenable
and shall have to be set aside. That would not,
however, prevent the trial Court from re-examining
the question of framing a charge under Section 302
IPC against the appellant and passing an
appropriate order if upon a prima facie appraisal
of the evidence adduced before it, the trial Court
comes to the conclusion that there is any room for
doing so. The trial Court would in that regard keep
in view the decision of this Court in Hasanbhai
Valibhai Qureshi v. State of Gujarat and Ors.
Patna High Court CR. APP (SJ) No.936 of 2016 17
(2004) 5 SCC 347 where this Court has recognized
the principle that in cases where the trial Court
upon a consideration of broad probabilities of the
case based upon total effect of the evidence and
documents produced, is satisfied that any addition
or alteration of the charge is necessary, it is free to
do so.
17. Reference may also be made to the decisions of
this Court in Ishwarchand Amichand Govadia and
Ors. v. State of Maharashtra and Anr. (2006) 10
SCC 322 and the decision of the Calcutta High
Court in Rajendra Singh Sethia v. State and Ors.
1989 Cri.L.J. 255 and that delivered by the
Allahabad High Court in Shiv Nandan and Ors. v.
State of U.P. 2005 Cri. L.J 3047 which too are to
the same effect. In any such fresh exercise which
the trial Court may undertake, it shall remain
uninfluenced by the observations made by the High
Court on merits of the case including those
touching the probative value of the autopsy
surgeon‟s opinion."
22. Again the issue came up for consideration in Vijay
Pal Singh and others vs. State of Uttarakhand reported in (2014) 15
SCC 163 and the same has been dealt with in following way:-
"18. However, it is generally seen that in cases where
Patna High Court CR. APP (SJ) No.936 of 2016 18
a married woman dies within seven years of
marriage, otherwise than under normal
circumstances, no inquiry is usually conducted to see
whether there is evidence, direct or circumstantial, as
to whether the offence falls under Section 302 of IPC.
Sometimes, Section 302 of IPC is put as an alternate
charge. In cases where there is evidence, direct or
circumstantial, to show that the offence falls under
Section 302 of IPC, the trial court should frame the
charge under Section 302 of IPC even if the police
has not expressed any opinion in that regard in the
report under Section 173(2) of the Cr.PC. Section
304B of IPC can be put as an alternate charge if the
trial court so feels. In the course of trial, if the court
finds that there is no evidence, direct or
circumstantial, and proof beyond reasonable doubt is
not available to establish that the same is not
homicide, in such a situation, if the ingredients under
Section 304B of IPC are available, the trial court
should proceed under the said provision. In Muthu
Kutty and another v. State (2005) 9 SCC 113 by
Inspector of Police, T.N.1, this Court addressed the
issue and held as follows:
"20. A reading of Section 304-B IPC and Section
113-B, Evidence Act together makes it clear that law
authorises a presumption that the husband or any
other relative of the husband has caused the death of
Patna High Court CR. APP (SJ) No.936 of 2016 19
a woman if she happens to die in circumstances not
normal and that there was evidence to show that she
was treated with cruelty or harassed before her death
in connection with any demand for dowry. It,
therefore, follows that the husband or the relative, as
the case may be, need not be the actual or direct
participant in the commission of the offence of death.
For those that are direct participants in the
commission of the offence of death there are already
provisions incorporated in Sections 300, 302 and
304. The provisions contained in Section 304-B IPC
and Section 113-B of the Evidence Act were
incorporated on the anvil of the Dowry Prohibition
(Amendment) Act, 1984, the main object of which is
to curb the evil of dowry in the society and to make it
severely punitive in nature and not to extricate
husbands or their relatives from the clutches of
Section 302 IPC if they directly cause death. This
conceptual difference was not kept in view by the
courts below. But that cannot bring any relief if the
conviction is altered to Section 304 Part II. No
prejudice is caused to the accused-appellants as they
were originally charged for offence punishable under
Section 302 IPC along with Section 304-B IPC."
19. In a recent decision, this Court in Jasvinder
Saini and others v. State (Government of NCT of
Delhi) (2013) 7 SCC 256, observed thus:
Patna High Court CR. APP (SJ) No.936 of 2016 20
"15. It is common ground that a charge under
Section 304-B IPC is not a substitute for a charge of
murder punishable under Section 302. As in the case
of murder in every case under Section 304-B also
there is a death involved. The question whether it is
murder punishable under Section 302 IPC or a dowry
death punishable under Section 304-B IPC depends
upon the fact situation and the evidence in the case. If
there is evidence whether direct or circumstantial to
prima facie support a charge under Section 302 IPC
the trial court can and indeed ought to frame a
charge of murder punishable under Section 302 IPC,
which would then be the main charge and not an
alternative charge as is erroneously assumed in some
quarters. If the main charge of murder is not proved
against the accused at the trial, the court can look
into the evidence to determine whether the alternative
charge of dowry death punishable under Section 304-
B is established. The ingredients constituting the two
offences are different, thereby demanding
appreciation of evidence from the perspective
relevant to such ingredients. The trial court in that
view of the matter acted mechanically for it framed
an additional charge under Section 302 IPC without
adverting to the evidence adduced in the case and
simply on the basis of the direction issued in Rajbir
case. The High Court no doubt made a halfhearted
Patna High Court CR. APP (SJ) No.936 of 2016 21
attempt to justify the framing of the charge
independent of the directions in Rajbir case, but it
would have been more appropriate to remit the
matter back to the trial court for fresh orders rather
than lending support to it in the manner done by the
High Court."
20. Though in the instant case the accused were
charged by the Sessions Court under Section 302 of
IPC, it is seen that the trial court has not made any
serious attempt to make an inquiry in that regard. If
there is evidence available on homicide in a case of
dowry death, it is the duty of the investigating officer
to investigate the case under Section 302 of IPC and
the prosecution to proceed in that regard and the
court to approach the case in that perspective.
Merely because the victim is a married woman
suffering an unnatural death within seven years of
marriage and there is evidence that she was
subjected to cruelty or harassment on account of
demand for dowry, the prosecution and the court
cannot close its eyes on the culpable homicide and
refrain from punishing its author, if there is evidence
in that regard, direct or circumstantial.
21. In the instant case, the prosecution has not made
any attempt to explain the ante-mortem injuries
which conclusively point to the cause of death as
asphyxia caused by strangulation. Yet, no serious
Patna High Court CR. APP (SJ) No.936 of 2016 22
attempt, it is disturbing to note, was done to connect
the murder to its author(s).
22. No doubt, nothing prevents this Court from
putting the appellants on notice as to why the
punishment should not be appropriately enhanced but
why we reluctantly decline to do so, we shall explain
in the later part of the judgment.
23. In two of the early decisions of this Court, after
the introduction of Section 304B of IPC, the
ingredients of the offence and the interplay of Section
304B of IPC with Sections 498A, 302, 306 of IPC
have also been discussed. In State of Punjab v. Iqbal
Singh and others (1991) 3 SCC 1, the Court in
paragraph-8 stated that:
"8. ... The legislative intent is clear to curb the
menace of dowry deaths, etc., with a firm hand. We
must keep in mind this legislative intent. It must be
remembered that since crimes are generally
committed in the privacy of residential homes and in
secrecy, independent and direct evidence is not easy
to get. That is why the legislature has by introducing
Sections 113-A and 113-B in the Evidence Act tried
to strengthen the prosecution hands by permitting a
presumption to be raised if certain foundational facts
are established and the unfortunate event has taken
place within seven years of marriage. This period of
seven years is considered to be the turbulent one
Patna High Court CR. APP (SJ) No.936 of 2016 23
after which the legislature assumes that the couple
would have settled down in life. If a married women
is subjected to cruelty or harassment by her husband
or his family members Section 498-A, IPC would be
attracted. If such cruelty or harassment was inflicted
by the husband or his relative for, or in connection
with, any demand for dowry immediately preceding
death by burns and bodily injury or in abnormal
circumstances within seven years of marriage, such
husband or relative is deemed to have caused her
death and is liable to be punished under Section 304-
B, IPC. When the question at issue is whether a
person is guilty of dowry death of a woman and the
evidence discloses that immediately before her death
she was subjected by such person to cruelty and/or
harassment for, or in connection with, any demand
for dowry, Section 113-B, Evidence Act provides that
the court shall presume that such person had caused
the dowry death. Of course if there is proof of the
person having intentionally caused her death that
would attract Section 302, IPC. Then we have a
situation where the husband or his relative by his
willful conduct creates a situation which he knows
will drive the woman to commit suicide and she
actually does so, the case would squarely fall within
the ambit of Section 306, IPC. In such a case the
conduct of the person would tantamount to inciting or
Patna High Court CR. APP (SJ) No.936 of 2016 24
provoking or virtually pushing the woman into a
desperate situation of no return which would compel
her to put an end to her miseries by committing
suicide. ..."
23. Section 221 of the Cr.P.C. permits the Court to
convict a person even in case of absence of charge in case of presence
of sufficient material available on the record and such finding would
not be subject to challenge as laid down under Section 464 of the
Cr.P.C. For better appreciation, the same is quoted below:-
"221. Where it is doubtful what offence has been
committed.
(1) If a single act or series of acts is of such a
nature that it is doubtful which of several offences
the facts which can be proved will constitute, the
accused may be charged with having committed all
or any of such offences, and any number of such
charges may be tried at once; or he may be charged
in the alternative with having committed some one
of the said offences.
(2) If in such a case the accused is charged with one
offence, and it appears in evidence that he
committed a different offence for which he might
have been charged under the provisions of sub-
section (1), he may be convicted of the offence
which he is shown to have committed, although he
Patna High Court CR. APP (SJ) No.936 of 2016 25
was not charged with it. Illustrations
(a) A is accused of an act which may amount to
theft, or receiving stolen property, or criminal
breach of trust or cheating. He may be charged
with theft, receiving stolen property, criminal
breach of trust and cheating, or he may be charged
with having committed theft, or receiving stolen
property, or criminal breach of trust or cheating.
(b) In the case mentioned, A is only charged with
theft. It appears that he committed the offence of
criminal breach of trust, or that of receiving stolen
goods. He may be convicted of criminal breach of
trust or of receiving stolen goods (as the case may
be), though he was not charged with such offence.
(c) A states on oath before the Magistrate that he
saw B hit C with a club. Before the Sessions Court
A states on oath that B never hit C. A may be
charged in the alternative and convicted of
intentionally giving false evidence, although it
cannot be proved which of these contradictory
statements was false.
464. Effect of omission to frame, or absence of, or
error in, charge.
(1) No finding, sentence or order by a Court of
competent jurisdiction shall be deemed invalid
merely on the ground that no charge was framed or
Patna High Court CR. APP (SJ) No.936 of 2016 26
on the ground of any error, omission or irregularity
in the charge including any misjoinder of charges,
unless, in the opinion of the Court of appeal,
confirmation or revision, a failure of justice has in
fact been occasioned thereby.
(2) If the Court of appeal, confirmation or revision
is of opinion that a failure of justice has in fact been
occasioned, it may-
(a) in the case of an omission to frame a charge,
order that a charge be framed and that the trial be
recommended from the point immediately after the
framing of the charge;
(b) in the case of an error, omission or irregularity
in the charge, direct a new trial to be had upon a
charge framed in whatever manner it thinks fit:
Provided that if the Court is of opinion that the
facts of the case are such that no valid charge could
be preferred against the accused in respect of the
facts proved, it shall quash the conviction."
24. In Mohan Singh vs. State of Bihar reported in
(2011) 9 SCC 272, where no charge under Section 302 I.P.C. was
framed, was taken into consideration and has been decided as:-
"27. In view of such consistent opinion of this
Court, we are of the view that no prejudice has been
caused to the appellant for non-mentioning of
Patna High Court CR. APP (SJ) No.936 of 2016 27
Section 302 I.P.C. in the charge since all the
ingredients of the offence were disclosed. The
appellant had full notice and had ample opportunity
to defend himself against the same and at no earlier
stage of the proceedings, the appellant had raised
any grievance. Apart from that, on overall
consideration of the facts and circumstances of this
case we do not find that the appellant suffered any
prejudice nor has there been any failure of justice.
28. In the instant case, in the charge it has been
clearly mentioned that the accused-appellant has
committed the murder of Anil Jha. By mentioning
that the accused has committed the murder of Anil
Jha all the ingredients of the charge have been
mentioned and the requirement of Section 211, sub-
section (2) has been complied with. Therefore, we
do not find any substance in the aforesaid grievance
of the appellant."
25. The Constitution Bench of the Apex Court in Willie
(William) Slaney vs. State of Madhya Pradesh reported in A.I.R.
1956 SC 116, has held:-
"44. Now, as we have said, sections 225, 232, 535
and 537(a) between them, cover every conceivable
typo, of error and irregularity referable to a charge
Patna High Court CR. APP (SJ) No.936 of 2016 28
that can possibly arise, ranging from cases in
which there is a conviction with no charge at all
from start to finish down to cases in which there is a
charge but with errors, irregularities and omissions
in it. The Code is emphatic that whatever the
irregularity it is not to be regarded as fatal unless
there is prejudice.
It is the substance that we must seek. Courts have to
administer justice and justice includes the
punishment of guilt just as much as the protection of
innocence. Neither can be done if the shadow is
mistaken for the substance and the goal is lost in a
labyrinth of unsubstantial technicalities. Broad
vision is required, a nice balancing of the rights of
the State and the protection of society in general
against protection from harassment to the
individual and the risks of unjust conviction.
Every reasonable presumption must be made
infavour of an accused person; he must be given the
benefit of every reasonable doubt. The same broad
principles of justice and fair play must be brought
to bear when determining a matter of prejudice as
in adjudging guilt. But when all is said and done,
what we are concerned to see is whether the
accused bad a fair trial, whether he knew what be
Patna High Court CR. APP (SJ) No.936 of 2016 29
was being tried for, whether the main facts sought
to be established against him were explained to him
fairly and clearly and whether he was given a full
and fair chance to defend himself.
If all these elements are there and no prejudice is
shown the conviction must stand whatever the
irregularities whether traceable to the charge or to
a want of one."
26. In Darbara Singh vs. State of Punjab reported in
(2012) 10 SCC 476, it has been held:-
"20. The defect in framing of the charges must be
so serious that it cannot be covered under Sections
464/465 Cr.P.C., which provide that, an order of
sentence or conviction shall not be deemed to be
invalid only on the ground that no charge was
framed, or that there was some irregularity or
omission or misjoinder of charges, unless the court
comes to the conclusion that there was also, as a
consequence, a failure of justice. In determining
whether any error, omission or irregularity in
framing the relevant charges, has led to a failure of
justice, the court must have regard to whether an
objection could have been raised at an earlier
stage, during the proceedings or not. While judging
the question of prejudice or guilt, the court must
Patna High Court CR. APP (SJ) No.936 of 2016 30
bear in mind that every accused has a right to a fair
trial, where he is aware of what he is being tried for
and where the facts sought to be established against
him, are explained to him fairly and clearly, and
further, where he is given a full and fair chance to
defend himself against the said charge(s).
21. The „failure of justice‟ is an extremely pliable or
facile expression, which can be made to fit into any
situation in any case. The court must endeavour to
find the truth. There would be „failure of justice‟;
not only by unjust conviction, but also by acquittal
of the guilty, as a result of unjust failure to produce
requisite evidence. Of course, the rights of the
accused have to be kept in mind and also
safeguarded, but they should not be over
emphasised to the extent of forgetting that the
victims also have rights. It has to be shown that the
accused has suffered some disability or detriment in
respect of the protections available to him under
Indian Criminal Jurisprudence. „Prejudice‟, is
incapable of being interpreted in its generic sense
and applied to criminal jurisprudence. The plea of
prejudice has to be in relation to investigation or
trial, and not with respect to matters falling outside
their scope. Once the accused is able to show that
Patna High Court CR. APP (SJ) No.936 of 2016 31
there has been serious prejudice caused to him,
with respect to either of these aspects, and that the
same has defeated the rights available to him under
jurisprudence, then the accused can seek benefit
under the orders of the Court. (Vide: Rafiq Ahmed
@ Rafi v. State of U.P., AIR 2011 SC 3114;
Rattiram & Ors. v. State of M.P. through Inspector
of Police, AIR 2012 SC 1485; and Criminal Appeal
No.46 of 2005 (Bhimanna v. State of Karnataka)
decided on 4th September, 2012)."
27. In Begu and others vs. King Emperor reported in
A.I.R. 1925 Privy Council 130, wherein accused was charged and
convicted at an initial stage under Section 302 I.P.C., but in appeal,
conviction was altered under Section 201 I.P.C. though no charge was
existing thereunder, it has been held:-
"A man may be convicted of an offence,
although there has been no charge in respect of it, if the
evidence is such as to establish a charge that might have
been made."
28. In Kamalanantha and others vs. State of Tamil
Nadu reported in (2005) 5 SCC 194, it has been observed:-
"50. It is clear from the aforesaid decisions that
misjoinder of charges is not an illegality but an
irregularity curable under Section 464 or Section
Patna High Court CR. APP (SJ) No.936 of 2016 32
465 Cr.P.C. provided no failure of justice had
occasioned thereby. Whether or not the failure of
justice had occasioned thereby, it is the duty of the
Court to see, whether an accused had a fair trial,
whether he knew what he was being tried for,
whether the main facts sought to be established
against him were explained to him fairly and
clearly and whether he was given a full and fair
chance to defend himself."
29. In Annareddy Sambasiva Reddy and others vs. State
of Andhra Pradesh reported in (2009) 12 SCC 546, it has been held:-
"55. In unmistakable terms, Section 464 specifies
that a finding or sentence of a court shall not be set
aside merely on the ground that a charge was not
framed or that charge was defective unless it has
occasioned in prejudice. Because of a mere defect
in language or in the narration or in form of the
charge, the conviction would not be rendered bad if
accused has not been adversely affected thereby. If
the ingredients of the section are obvious or
implicit, conviction in regard thereto can be
sustained irrespective of the fact that the said
section has not been mentioned."
30. In K. Prema S. Rao and another vs. Yadala
Srinivasa Rao and others reported in (2003) 1 SCC 217, it has been
Patna High Court CR. APP (SJ) No.936 of 2016 33
held:-
"22. Mere omission or defect in framing charge
does not disable the Criminal Court from convicting
the accused for the offence which is found to have
been proved on the evidence on record. The Code of
Criminal procedure has ample provisions to meet a
situation like the one before us. From the Statement
of Charge framed under Section 304B and in the
alternative Section 498A, IPC (as quoted above) it
is clear that all facts and ingredients for framing
charge for offence under Section 306, IPC existed
in the case. The mere omission on the part of the
trial Judge to mention of Section 306, IPC with
498A, IPC does not preclude the Court from
convicting the accused for the said offence when
found proved. In the alternate charge framed under
Section 498A of IPC, it has been clearly mentioned
that the accused subjected the deceased to such
cruelty and harassment as to drive her to commit
suicide. The provisions of Section 221 of Cr.P.C.
take care of such a situation and safeguard the
powers of the criminal court to convict an accused
for an offence with which he is not charged
although on facts found in evidence, he could have
been charged for such offence. Section 221 of Cr.
Patna High Court CR. APP (SJ) No.936 of 2016 34
P.C. needs reproduction:-
"221. Where it is doubtful what offence has been
committed-(l) If a single act or series of acts is of
such a nature that it is doubtful which of several
offences the facts which can be proved will
constitute, the accused may be charged with having
committed all or any of such offences, and any
number of such charges may be tried at once; or he
may be charged. In the alternative with having
committed some one of the said offences.
(2) If in such a case the accused is charged with one
offence, and it appears in evidence that he
committed a different offence for which he might
have been charged under the provisions of sub-
section (12), he may be convicted of the offence
which he is shown to have committed, although he
was not charged with it.
23. The provision of sub-section (2) of Section 221
read with sub-section (1) of the said Section can be
taken aid of in convicting and sentencing the
accused No. 1 of offence of abetment of suicide
under Section 306 of IPC along with or instead of
Section 498A of IPC.
24. Section 215 allows criminal court to ignore any
Patna High Court CR. APP (SJ) No.936 of 2016 35
error in stating either the offence or the particulars
required to be stated in the charge, if the accused
was not, in fact, misled by such error or omission in
framing the charge and it has not occasioned a
failure of justice. See Section 215 of Cr. P.C. which
reads:-
"215. Effect of errors - No error in stating, either
the offence or the particulars required to be stated
in the charge, and no commission to state the
offence or those particulars, shall be regarded any
stage of the case as material, unless the accused
was in fact misled by such error or omission, and it
has occasioned a failure of justice.
25. As provided in Section 215 of Cr.P.C.
commission to frame charge under Section 306 IPC
has not resulted in any failure of justice. We find no
necessity to remit the matter to the trial court for
framing charge under Section 306 IPC and direct a
retrial for that charge. The accused cannot
legitimately complain of any want of opportunity to
defend the charge under Section 306, IPC and a
consequent failure of justice. The same facts found
in evidence, which justify conviction of the
appellant under Section 498A for cruel treatment of
his wife, make out a case against him under Section
Patna High Court CR. APP (SJ) No.936 of 2016 36
306 IPC of having abetted commission of suicide by
the wife. The appellant was charged for an offence
of higher degree causing "dowry death" under
Section 304B which is punishable with minimum
sentence of seven years rigorous imprisonment and
maximum for life. Presumption under Section 113A
of the Evidence Act could also be raised against
him on same facts constituting offence of cruelty
under Section 498A, IPC. No further opportunity of
defence is required to be granted to the appellant
when he had ample opportunity to meet the charge
under Section 498A, IPC."
31. In Dinesh Seth vs. State of NCT of Delhi reported in
(2008) 14 SCC 94, it has been held:-
"11. A reading of the plain language of Section
221(1) and (2) shows that if a single act or series of
acts constitute several offences and the prosecution
is not certain about the particular offence then the
accused can be charged with the allegation of
having committed all, some or any of the offences.
In such a case the accused can be convicted of the
offence with which he may not have been
specifically charged but evidence produced by the
prosecution proves that such an offence has, in fact,
been committed.
Patna High Court CR. APP (SJ) No.936 of 2016 37
12. Section 222(1) lays down that when a person is
charged with an offence consisting of several
particulars and combination of only some of the
particulars constituting a minor offence is proved
then he can be convicted of the minor offence with
which he may not have been charged. Section
222(2) lays down that when a person is charged
with an offence but the facts proved constitute a
minor offence then he can be convicted of the minor
offence despite the fact that he may not have been
charged with that offence. Sub-section (3) of
Section 222 lays down that a person charged with
an offence, can be convicted of an attempt to
commit such offence even though a separate charge
may not have been framed on that account.
13. Section 464(1) lays down that any error,
omission or irregularity in the framing of charge
including any misjoinder of charges, will not
invalidate a finding, sentence or order by a court of
competent jurisdiction unless the higher court
comes to a conclusion that failure of justice has
been occasioned. Sub-section (2) of Section 464
specifies the modes which can be adopted by the
Court of appeal, confirmation or revision, if such
court is of the opinion that a failure of the justice
Patna High Court CR. APP (SJ) No.936 of 2016 38
has been occasioned on account of non framing of
charge or any error, omission or irregularity in the
framing of charge.
14. The question whether omission to frame a
charge or any error or irregularity in the charge, is
by itself, sufficient for quashing the conviction of
the accused was considered in Willie (William)
Slaney vs. State of M.P. [AIR 1956 SC 116]. After
examining the issue in detail, the Constitution
Bench of this Court observed:-
"6. Before we proceed to set out our answer
and examine the provisions of the Code, we will
pause to observe that the Code is a code of
procedure and, like all procedural laws, is designed
to further the ends of justice and not to frustrate
them by the introduction of endless technicalities.
The object of the Code is to ensure that an accused
person gets a full and fair trial along certain well-
established and well-understood lines that accord
with our notions of natural justice.
If he does, if he is tried by a competent court, if he
is told and clearly understands the nature of the
offence for which he is being tried, if the case
against him is fully and fairly explained to him and
he is afforded a full and fair opportunity of
Patna High Court CR. APP (SJ) No.936 of 2016 39
defending himself, then, provided there is
`substantial' compliance with the outward forms of
the law, mere mistakes in procedure, mere
inconsequential errors and omissions in the trial
are regarded as venal by the Code and the trial is
not vitiated unless the accused can show substantial
prejudice. That, broadly speaking, is the basic
principle on which the Code is based.
7. Now here, as in all procedural laws,
certain things are regarded as vital. Disregard of a
provision of that nature is fatal to the trial and at
once invalidates the conviction. Others are not vital
and whatever the irregularity they can be cured;
and in that event the conviction must stand unless
the Court is satisfied that there was prejudice. Some
of these matters are dealt with by the Code and
wherever that is the case full effect must be given to
its provisions."
15. The Constitution Bench then referred to the
provisions of Sections 225, 232, 535 and 537 of the
Code of Criminal Procedure, 1898, which are
analogous to Section 215, 464 and 465 of the Code
and held (AIR 1956 SC 116.:
"44. "Now, as we have said, Sections 225,
232, 535 and 537(a) between them, cover every
Patna High Court CR. APP (SJ) No.936 of 2016 40
conceivable type of error and irregularity referable
to a charge that can possibly arise, ranging from
cases in which there is a conviction with no charge
at all from start to finish down to cases in which
there is a charge but with errors, irregularities and
omissions in it. The Code is emphatic that
`whatever' the irregularity it is not to be regarded
as fatal unless there is prejudice.
It is the substance that we must seek. Courts
have to administer justice and justice includes the
punishment of guilt just as much as the protection of
innocence. Neither can be done if the shadow is
mistaken for the substance and the goal is lost in a
labyrinth of unsubstantial technicalities. Broad
vision is required, a nice balancing of the rights of
the State and the protection of society in general
against protection from harassment to the
individual and the risks of unjust conviction.
Every reasonable presumption must be
made in favour of an accused person; he must be
given the benefit of every reasonable doubt. The
same broad principles of justice and fair play must
be brought to bear when determining a matter of
prejudice as in adjudging guilt. But when all is said
and done what we are concerned to see is whether
Patna High Court CR. APP (SJ) No.936 of 2016 41
the accused had a fair trial, whether he knew what
he was being tried for, whether the main facts
sought to be established against him were explained
to him fairly and clearly and whether he was given
a full and fair chance to defend himself.
If all these elements are there and no prejudice is
shown the conviction must stand whatever the
irregularities whether traceable to the charge or to
a want of one."
16. In Gurbachan Singh vs. State of Punjab [AIR
1957 SC 623], a three Judges' Bench considered the
question of prejudice and observed:
"7. In judging a question of prejudice, as of guilt,
courts must act with a broad vision and look to the
substance and not to technicalities, and their main
concern should be to see whether the accused had a
fair trial, whether he knew what he was being tried
for, whether the main facts sought to be established
against him were explained to him fairly and
clearly and whether he was given a full and fair
chance to defend himself."
17. In Lakhjit Singh vs. State of Punjab [1994 Supp.
(1) SCC 173], the accused were charged and
convicted of offence under Section 302 IPC. The
High Court upheld their conviction. A two Judges'
Patna High Court CR. APP (SJ) No.936 of 2016 42
Bench of this Court held that charge under Section
302 IPC is not established but convicted the
appellants under Section 306 IPC. While rejecting
the argument that in the absence of a specific
charge under Section 306 IPC, the appellants
cannot be convicted under that section, the Court
observed:-
"9. The learned counsel, however, submits that
since the charge was for the offence punishable
under Section 302 Indian Penal Code, the accused
were not put to notice to meet a charge also made
against them under Section 306 IPC and, therefore,
they are prejudiced by not framing a charge under
Section 306 Indian Penal Code and; therefore,
presumption under Section 113-A of Indian
Evidence Act cannot be drawn and consequently a
conviction under Section 306 cannot be awarded.
We are unable to agree. The facts and
circumstances of the case have been put forward
against the accused under Section 313 CrPC and
when there was a demand for dowry it cannot be
said that the accused are prejudiced because the
cross-examination of the witnesses, as well as the
answers given under Section 313 CrPC would show
that they had enough of notice of the allegations
which attract Section 306 Indian Penal Code also."
Patna High Court CR. APP (SJ) No.936 of 2016 43
18. In Sangaraboina Sreenu vs. State of A.P. [1997
(5) SCC 348], another Bench of two Judges'
expressed a contrary view. The facts of that case
were that the accused was convicted by the trial
court under Section 302 IPC. The High Court
converted the conviction to one under Section 306
IPC. While reversing the judgment of the High
Court, this Court held:
"2. This appeal must succeed for the simple reason
that having acquitted the appellant of the charge
under Section 302 IPC -- which was the only charge
framed against him -- the High Court could not
have convicted him of the offence under Section 306
IPC. It is true that Section 222 CrPC entitles a
court to convict a person of an offence which is
minor in comparison to the one for which he is tried
but Section 306 IPC cannot be said to be a minor
offence in relation to an offence under Section 302
IPC within the meaning of Section 222 CrPC for the
two offences are of distinct and different categories.
While the basic constituent of an offence under
Section 302 IPC is homicidal death, those of
Section 306 IPC are suicidal death and abetment
thereof."
19. In view of the apparently conflicting judgments
Patna High Court CR. APP (SJ) No.936 of 2016 44
of the coordinate Benches, the issue was referred to
a larger Bench. In Dalbir Singh vs. State of U.P.
[2004 (5) SCC 334], a three Judges' Bench
considered the provisions of Section 222 and 464 of
the Code and observed:-
"14.....Sub-section (1) of Section 222 lays down that
when a person is charged with an offence consisting
of several particulars, a combination of some only
of which constitutes a complete minor offence, and
such combination is proved, but the remaining
particulars are not proved, he may be convicted of
the minor offence, though he was not charged with
it. Sub- section (2) of the same section lays down
that when a person is charged with an offence and
facts are proved which reduce it to a minor offence,
he may be convicted of the minor offence, although
he is not charged with it. Section 222 CrPC is in the
nature of a general provision which empowers the
court to convict for a minor offence even though
charge has been framed for a major offence.
Illustrations (a) and (b) to the said section also
make the position clear. However, there is a
separate chapter in the Code of Criminal
Procedure, namely, Chapter XXXV which deals
with irregular proceedings and their effect. This
chapter enumerates various kinds of irregularities
Patna High Court CR. APP (SJ) No.936 of 2016 45
which have the effect of either vitiating or not
vitiating the proceedings. Section 464 of the Code
deals with the effect of omission to frame, or
absence of, or error in, charge. Sub-section (1) of
this section provides that no finding, sentence or
order by a court of competent jurisdiction shall be
deemed invalid merely on the ground that no
charge was framed or on the ground of any error,
omission or irregularity in the charge including any
misjoinder of charges, unless, in the opinion of the
court of appeal, confirmation or revision, a failure
of justice has in fact been occasioned thereby. This
clearly shows that any error, omission or
irregularity in the charge including any misjoinder
of charges shall not result in invalidating the
conviction or order of a competent court unless the
appellate or revisional court comes to the
conclusion that a failure of justice has in fact been
occasioned thereby." (emphasis in original)
20. The three Judges' Bench then referred to the
earlier judgments in Willie (William) Slaney vs.
State of M.P. (A.I.R. 1956 SC 116), Gurbachan
Singh vs. State of Punjab (supra) and observed:-
"17. There is a catena of decisions of this Court on
the same lines and it is not necessary to burden this
Patna High Court CR. APP (SJ) No.936 of 2016 46
judgment by making reference to each one of them.
Therefore, in view of Section 464 CrPC, it is
possible for the appellate or revisional court to
convict an accused for an offence for which no
charge was framed unless the court is of the opinion
that a failure of justice would in fact occasion. In
order to judge whether a failure of justice has been
occasioned, it will be relevant to examine whether
the accused was aware of the basic ingredients of
the offence for which he is being convicted and
whether the main facts sought to be established
against him were explained to him clearly and
whether he got a fair chance to defend himself. We
are, therefore, of the opinion that Sangaraboina
Sreenu was not correctly decided as it purports to
lay down as a principle of law that where the
accused is charged under Section 302 IPC, he
cannot be convicted for the offence under Section
306 IPC."
21. The ratio of the above noted judgments is that in
certain situations an accused can be convicted of an
offence with which he may not have been
specifically charged and that an error, omission or
irregularity in the framing of charge is, by itself not
sufficient for upsetting the conviction. The
appellate, confirming or revisional Court can
Patna High Court CR. APP (SJ) No.936 of 2016 47
interfere in such matters only if it is shown that
error, omission or irregularity in the framing of
charge has caused prejudice to the accused and
failure of justice has been occasioned."
32. In Sanichar Sahni vs. State of Bihar reported in
(2009) 7 SCC 198, it has been held:-
21. It is also not the case where the appellant can
take the plea that he was not aware as what was the
charge against him and what defence he could lead.
There had been evidence of hatching the conspiracy
of impeccable character. On the point of conspiracy
the courts below have recorded the finding against
the appellant.
22. In State of A.P. v. Thakkidiram Reddy, (1998) 6
SCC 554, this Court considered the issue of not
framing the proper charges. In that case averment
had been raised that charges have not been framed
against the accused persons in accordance with
Section 211 Cr.P.C.. In that case the charge had
been framed under Section 148 IPC, though it was
alleged that they were the members of an unlawful
assembly, it was not mentioned what its common
object was. Besides, it was contended, a charge
under Section 302 IPC simpliciter was framed
against all the accused persons and not with the aid
Patna High Court CR. APP (SJ) No.936 of 2016 48
of Section 149 IPC for which they were convicted
by the trial court.
23. This Court repealed the contention observing as
under: (1998) 6 SCC 554).
"10. Sub-section (1) of Section 464 of the Code of
Criminal Procedure 1973 ("Code" for short)
expressly provides that no finding, sentence or
order by; a court of competent jurisdiction shall be
deemed invalid merely on the ground that no
charge was framed or on the ground of any error,
omission or irregularity in the charge including any
misjoinder of charges, unless in the opinion of the
court of appeal, confirmation or revision, a failure
of justice has in fact (emphasis supplied) been
occasioned thereby. Sub-section (2) of the said
section lays down the procedure that the court of
appeal, confirmation or revision has to follow in
case it is of the opinion that a failure of justice has
in fact been occasioned. The other section relevant
for our purposes is Section 465 of the Code; and it
lays down that no finding, sentence or order passed
by a court of competent jurisdiction shall be
reversed or altered by a court of appeal,
confirmation or revision on account of any error,
omission or irregularity in the proceedings, unless
Patna High Court CR. APP (SJ) No.936 of 2016 49
in the opinion of that court, a failure of justice has
in fact been occasioned. It further provides, inter
alia, that in determining whether any error,
omission or irregularity in any proceeding under
this Code has occasioned a failure of justice, the
Court shall have regard to the fact whether the
objection could and should have been raised at an
earlier stage in the proceedings." (emphasis in
original)
24. The Court in Thakkidiram case 1998) 6 SCC
554 further held that in judging a question of
prejudice, as of guilt, court must act with a broad
vision and look to the substance and not to
technicalities, and its main concern should be to see
whether the accused had a fair trial, whether he
knew what he was being tried for, whether the main
facts sought to be established against him were
explained to him fairly and clearly and whether he
was given a full and fair chance to defend himself.
In the said case this Court ultimately came to the
conclusion that in spite of defect in framing of
charge, as no prejudice had been caused to the
convicts, no interference was required.
25. A Constitution Bench of this Court in Willie
(William) Slaney, v. State of M.P., AIR 1956 SC
Patna High Court CR. APP (SJ) No.936 of 2016 50
116, considered the issue of non- framing of
charges properly and conviction of an accused for
the offences for which he has not been charged and
reached the conclusion as under:-
"86. ...In such a situation, the absence of a charge
under one or other of the various heads of criminal
liability for the offence cannot be said to be fatal by
itself, and before a conviction for the substantive
offence, without a charge, can be set aside,
prejudice will have to be made out. .... .....
87 .... If it is so grave that prejudice will necessarily
be implied or imported, it may be described as an
illegality. If the seriousness of the omission is of a
lesser degree, it will be an irregularity and
prejudice by way of failure of justice will have to be
established".
26. This Court in Gurpreet Singh v. State of Punjab,
(2005) 12 SCC 615 referred to and relied upon its
earlier judgments in Willie (William) Slaney, (AIR
1956 SC 116) and State of A.P. v. Thakkidiram
Reddy, (1998) 6 SCC 554) and held that unless
there is failure of justice and thereby the cause of
the accused has been prejudiced, no interference is
required if the conviction can be upheld on the
evidence led against the accused. The Court should
Patna High Court CR. APP (SJ) No.936 of 2016 51
not interfere unless it is established that the accused
persons were in any way prejudiced due to the
errors and omissions in framing the charges against
him. A similar view has been reiterated by this
Court in Ramji Singh v. State of Bihar (2001) 9
SCC 528.
29. On this very issue of conspiracy, the
prosecution led evidence of impeccable character of
two witnesses, namely, Ashok Paswan PW.2 and
Ashok Kumar Verma PW.5. The appellant was
given full opportunity to defend himself only on this
very point of conspiracy as there was no other
allegation against him. He was asked specific
question by the trial court on the point of
conspiracy while recording his statement under
Section 313 Cr.P.C. Therefore, it cannot be held
even by any stretch of imagination that any
prejudice has been caused to the appellant on this
very issue."
33. At the present moment, one should not lost sight of
obligation having entrusted on the part of the Court as well as
prosecutor in case being sessions triable, as Section 226 Cr.P.C.
prescribes an obligation upon the prosecutor to open his case by
stating that under what penal provisions, charge is to be framed and
Patna High Court CR. APP (SJ) No.936 of 2016 52
by what evidence the aforesaid charge is going to be proved which, in
terms of Section 227 as well as Section 228 of the Cr.P.C. the Court
has to perceive whether the materials having placed before the Court
is to justify trial and if so, under what relevant provision Court
attracts discharge on account of paucity of prima facie material.
34. At the present moment, one more aspect is to be seen
as is visualizing from the record itself. From the L.C. Record, it is
evident that fard-bayan of informant does contain disclosure that fard-
bayan of deceased was already recorded by Pirbahore P.S. at an
earlier occasion which, the reason best known to the concerned
authorities did not find favour as that version was the initial version
which ought to have been the basis of the registration of the case and
further, the aforesaid statement which later on became dying
declaration was kept away and remained away conspiracy though duly
certified photo copy has been brought up on record by PW-6 and PW-
7, Investigating Officer during course of trial Exhibit-1, which
completely rules out the theme of dowry death rather as deceased did
not accede to lecherous desire of the accused/ appellant on account
thereof, she was caught hold, kerosene oil was sprinkled and then, lit
fire over her body by the appellants.
35. Whether it happens to be a miscarriage of justice or
not, is a theme to be perceived whereupon de novo trial be directed
Patna High Court CR. APP (SJ) No.936 of 2016 53
while exercising appellate power in terms of Section 386 of the
Cr.P.C. Though, such eventualities have not been defined under
Section 386 of the Cr.P.C. At the other end, it has been left out within
the arena of appellate Court to pass such order in a case so
appreciated, warranting the same.
36. At the present juncture, it looks pertinent to perceive
the submission made on behalf of learned counsel for the appellant,
who has stressed over Clause-b(1) of Section 386 of the Cr.P.C. and
submitted that first obligation which, the appellate Court is to
discharge, to acquit the appellant by way of reversing the finding and
if not, then may order for retrial in appropriate cases. That being so,
retrial should not be the proper step taken by the appellate Court even
finding lapses at the part of the lower Court which, on due
consideration, be considered as a ground for acquittal of the accused
and not for retrial. Lapses were at the end of learned lower Court and
so, the same could not be allowed to be corrected, filled up in order to
sustain conviction against an accused causing prejudice to their
interest.
37. There happens to be obligation on the part of the
Court to see that it is not only protection of the interest of the accused
rather it is also for protection of the victim. A crime is not always
against an individual rather it happens to be against the State and so,
Patna High Court CR. APP (SJ) No.936 of 2016 54
its impact has also to been seen, more particularly allowing a
perception against the system that on account of wrong having been
committed by the Court, the culprit has been allowed to go escort free.
Furthermore, the Court should not be a mere silent expectator rather it
has to be active during course of trial to ward off any kind of lapses
affecting the trial on account of undue steps. That being so, an
obligation having attributed upon a Court by the statute is to be duly
discharged in legal way so that no one could found aggrieved thereby.
38. Miscarriage of justice is not at all defined rather it
happens to be an eventuality perceived by the Court, committed by
the Court which ultimately cost upon proprietary of the judgment
Court. As has been referred by learned counsel for the appellant in
Ajay Kumar Ghoshal Etc. vs. State of Bihar and another reported in
2017(1) P.L.J.R. 458 (SC), it has been held by the Hon'ble Apex
Court as follows:-
"10. Section 386 Cr.P.C. deals with the powers
of the appellate court. As per Section 386 (b)
Cr.P.C, in an appeal from a conviction, the
appellate court may:- (i) reverse the finding and
sentence and acquit or discharge the accused, or
order him to be re-tried by a Court of competent
jurisdiction subordinate to such Appellate Court
or committed for trial, or
Patna High Court CR. APP (SJ) No.936 of 2016 55
(ii) alter the finding, maintaining the sentence, or
(iii) with or without altering the finding, alter the
nature or the extent, or the nature and extent, of
the sentence, but not so as to enhance the same.
11. Though the word "retrial" is used under
Section 386(b)(i) Cr.P.C., the powers conferred
by this clause is to be exercised only in
exceptional cases, where the appellate court is
satisfied that the omission or irregularity has
occasioned in failure of justice. The
circumstances that should exist for warranting a
retrial must be such that where the trial was
undertaken by the Court having no jurisdiction,
or trial was vitiated by serious illegality or
irregularity on account of the misconception of
nature of proceedings. An order for retrial may
be passed in cases where the original trial has
not been satisfactory for some particular reasons
such as wrong admission or wrong rejection of
evidences or the Court refused to hear certain
witnesses who were supposed to be heard.
39. In Ukha Kolhe-appellant v. the State of
Maharashtra-respondent reported in A.I.R. 1963 (SC) 1531, the
majority view of the Constitution Bench held as follows:-
Patna High Court CR. APP (SJ) No.936 of 2016 56
"11. An order for retrial of a criminal case is
made in exceptional cases, and not unless the
appellate Court is satisfied that the Court trying
the proceeding had no jurisdiction to try it or
that the trial was vitiated by serious illegalities
or irregularities or on account of misconception
of the nature of the proceedings and on that
account in substance there had been no real trial
or that the Prosecutor or an accused was, for
reasons over which he had no control, prevented
from leading or tendering evidence material to
the charge, and in the interests of justice the
appellate Court deems it appropriate, having
regard to the circumstances of the case, that the
accused should be put on his trial again. An
order of re-trial wipes out from the record the
earlier proceeding, and exposes the person
accused to another trial which affords the
prosecutor an opportunity to rectify the
infirmities disclosed in the earlier trial, and will
not ordinarily be countenanced when it is made
merely to enable the prosecutor to lead evidence
which he could but has not cared to lead either
on account of insufficient appreciation of the
nature of the case or for other reasons. Harries,
C. J.,in Ramanlal Rathi v. The State AIR 1951
Patna High Court CR. APP (SJ) No.936 of 2016 57
Cal 305 observed :
"If at the end of a criminal prosecution the
evidence leaves the Court in doubt as to the guilt
of the accused the latter is entitled to a. verdict of
not guilty. A retrial may be ordered when the
original trial has not been satisfactory for
particular reasons, for example, if evidence had
been wrongly rejected which should have been
admitted, or admitted when it should have been
rejected, or the Court had refused to hear certain
witness who should have been heard. But retrial
cannot be ordered on the ground that, the
prosecution did not produce the proper evidence
and did not know how to prove their case."
In the present case, undoubtedly the trial before
the Magistrate suffered from irregularities which
we have already set out. The evidence, such as
was led, was deficient in important respects; but
that could not be a sufficient ground for directing
a retrial. If the Sessions judge thought that in the
interests of justice and for a just and proper
decision of the case it was necessary that
additional evidence should be brought on the
record he should have, instead of directing a
retrial and reopening the entire proceedings
Patna High Court CR. APP (SJ) No.936 of 2016 58
resorted to the procedure prescribed by s. 428 (i)
or the Code of Criminal Procedure. There is no
doubt that if the ends of justice require, the
appellate Court should exercise its power under
the said section.
40. In Rajeshwar Prasad Mishra, Appellant v. the State
of West Bengal and another, Respondents reported in A.I.R. 1965
SC 1887, wherein it has been held:-
"8. These arguments disclose a tendency to read
the observations of this Court as statutory
enactments. No doubt, the law declared by this
Court binds Courts in India but it should always be
remembered that this Court does not enact. The
two cases of this Court point out that in criminal
jurisdiction the guiding principle is that a person
must not be vexed twice for the same offence. That
principle is embodied in S. 403 of the Code and is
now included as a Fundamental Right in Art. 20(2)
of the Constitution. The protection, however, is
only as long as the conviction or acquittal stands.
But the Code contemplates that a retrial may be
ordered after setting aside the conviction or
acquittal (as the case may be) if the trial already
held is found to be unsatisfactory or leads to a
failure of justice. In the same way, the Code gives a
Patna High Court CR. APP (SJ) No.936 of 2016 59
power to the appellate Court to take additional
evidence, which, for reasons to be recorded, it
considers necessary. The Code thus gives power to
the appellate Court to order one or the other as the
circumstances may require leaving a wide
discretion to it to deal appropriately with different
cases. The two cases of this Court deal with
situations in which a retrial was considered
necessary by the appellate Court. In the case of
Abinash Chandra Bose, AIR 1963 SC 316, this
Court held that the order for retrial was not
justified. In Ukha Kolhe's case, AIR 1963 SC 1531,
too the order for retrial was considered
unnecessary because the end could have been
achieved equally well by taking additional
evidence. This Court mentioned, by way of
illustration, some of the circumstances which
frequently occur and in which retrial may properly
be ordered. It is not to be imagined that the list
there given was exhaustive or that this Court was
making a clean cut between those cases where
retrial rather than the taking of additional evidence
was the proper course. It is easy to contemplate
other circumstances where retrial may be
necessary as for example where a conviction or an
acquittal was obtained by fraud, or a trial for a
Patna High Court CR. APP (SJ) No.936 of 2016 60
wrong offence was held or abettors were tried as
principal offenders and vice versa. Many other
instances can be imagined. The Legislature has not
chosen to indicate the limits of the power and this
Court must not be understood to have laid them
down. Cases may arise where either of the two
courses may appear equally appropriate. Since a
wide discretion is conferred on appellate Courts,
the limits of that Court's jurisdiction must+
obviously be dictated by the exigency of the
situation and fair play and good sense appear to be
the only safe guides. There is, no doubt some
analogy between the power to order a retrial ind
the power to take additional evidence. The former
is an extreme step approximately taken if
additional evidence will not suffice. Both actions
subsume failure of justice as a condition precedent.
There the resemblance ends and it is hardly proper
to construe one section with the aid of observations
made by this Court in the interpretation of the
other section."
41. In ShamSaheb M. Multtani vs. State of Karnataka
reported in (2001) 2 SCC 577, it has been held:-
"24. One of the cardinal principles of natural
justice is that no man should be condemned without
Patna High Court CR. APP (SJ) No.936 of 2016 61
being heard, (Audi alterum partem). But the law
reports are replete with instances of courts
hesitating to approve the contention that failure of
justice had occasioned merely because a person
was not heard on a particular aspect. However, if
the aspect is of such a nature that non-explanation
of it has contributed to penalising an individual, the
court should say that since he was not given the
opportunity to explain that aspect there was failure
of justice on account of non-compliance with the
principle of natural justice.
32. The serious consequence which may ensue to
the accused in such a situation can be limned
through an illustration:- If a bride was murdered
within seven years of her marriage and there was
evidence to show that either on the previous day or
a couple of days earlier she was subjected to
harassment by her husband with demand for dowry,
such husband would be guilty of the offence on the
language of Section 304-B IPC read with Section
113-B of the Evidence Act. But if the murder of his
wife was actually committed either by a decoit or by
a militant in a terrorist act the husband can lead
evidence to show that he had no hand in her death
at all. If he succeeds in discharging the burden of
Patna High Court CR. APP (SJ) No.936 of 2016 62
proof he is not liable to be convicted under Section
304B, IPC. But if the husband is charged only
under Section 302 IPC he has no burden to prove
that his wife was murdered like that as he can have
his traditional defence that the prosecution has
failed to prove the charge of murder against him
and claim an order of acquittal.
33. The above illustration would amplify the gravity
of the consequence befalling an accused if he was
only asked to defend a charge under Section 302
IPC and was alternatively convicted under Section
304B IPC without any notice to him, because he is
deprived of the opportunity to disprove the burden
cast on him by law.
34. In such a situation, if the trial court finds that
the prosecution has failed to make out the case
under Section 302 IPC, but the offence under
Section 304-B IPC has been made out, the court has
to call upon the accused to enter on his defence in
respect of the said offence. Without affording such
an opportunity to the accused, a conviction under
Section 304-B IPC would lead to real and serious
miscarriage of justice. Even if no such count was
included in the charge, when the court affords him
an opportunity to discharge his burden by putting
Patna High Court CR. APP (SJ) No.936 of 2016 63
him to notice regarding the prima facie view of the
court that he is liable to be convicted under Section
304B IPC, unless he succeeds in disproving the
presumption, it is possible for the court to enter
upon a conviction of the said offence in the event of
his failure to disprove the presumption.
35. As the appellant was convicted by the High
Court under Section 304-B IPC, without such
opportunity being granted to him, we deem it
necessary in the interest of justice to afford him that
opportunity. The case in the trial court should
proceed against the appellant (not against the other
two accused whose acquittal remains unchallenged
now) from the stage of defence evidence. He is put
to notice that unless he disproves the presumption,
he is liable to be convicted under section 304-B
IPC."
42. In Vinod Kumar vs. State of Punjab reported in
(2015) 3 SCC 220, it has been held:-
"3. The narration of the sad chronology shocks the
judicial conscience and gravitates the mind to pose
a question, is it justified for any conscientious trial
Judge to ignore the statutory command, not
recognize "the felt necessities of time" and remain
impervious to the cry of the collective asking for
Patna High Court CR. APP (SJ) No.936 of 2016 64
justice or give an indecent and uncalled for burial
to the conception of trial, totally ostracizing the
concept that a civilized and orderly society thrives
on rule of law which includes "fair trial" for the
accused as well as the prosecution.;
43. In Rattiram and others vs. State of Madhya Pradesh
with Satyanarayan and others vs. State of Madhya Pradesh reported
in (2012) 4 SCC 516, it has been held:-
"39. The question posed by us fundamentally
relates to the non-compliance of such interdict. The
crux of the matter is whether it is such a substantial
interdict which impinges upon the fate of the trial
beyond any redemption or, for that matter it is such
an omission or it is such an act that defeats the
basic conception of fair trial. Fundamentally, a fair
and impartial trial has a sacrosanct purpose. It has
a demonstrable object that the accused should not
be prejudiced. A fair trial is required to be
conducted in such a manner which would totally
ostracise injustice, prejudice, dishonesty and
favouritism."
44. In Pooja Pal vs. Union of India and others reported
in (2016) 3 SCC 135, it has been held:-
"53. This Court in the above disquieting backdrop
Patna High Court CR. APP (SJ) No.936 of 2016 65
in Zahira Habibulla Sheikh case (2004) 4 SCC 158,
did underline that discovery, vindication and
establishment of truth were the avowed purposes
underlying the existence of the courts of justice.
Apart from indicating that the principles of a fair
trial permeate the common law in both civil and
criminal contexts, this Court underscored the
necessity of a delicate judicial balancing of the
competing interests in a criminal trial - the interests
of the accused and the public and to a great extent
that too of the victim, at the same time not losing
the sight of public interest involved in the
prosecution of persons who commit offences.
54. It was propounded in Zahira Habibulla Sheikh
case (2004) 4 SCC 158 that in a criminal case, the
fate of the proceedings cannot always be left
entirely in the hands of the parties, crimes being
public wrongs in breach and violation of public
rights and duties, which affect the whole community
and are harmful to the society in general. That the
concept of fair trial entails the triangulation of the
interest of the accused, the victim, society and that
the community acts through the state and the
prosecuting agency was authoritatively stated. This
Court observed that the interests of the society are
Patna High Court CR. APP (SJ) No.936 of 2016 66
not to be treated completely with disdain and as
persona non grata. It was remarked as well that due
administration of justice is always viewed as a
continuous process, not confined to the
determination of a particular case so much so that a
court must cease to be a mute spectator and a mere
recording machine but become a participant in the
trial evincing intelligence and active interest and
elicit all relevant materials necessary for reaching
the correct conclusion, to find out the truth and
administer justice with fairness and impartiality
both to the parties and to the community.
55. In Zahira Habibulla Sheikh case (2004) 4 SCC
158, While highlighting the courts‟ overriding duty
to maintain public confidence in the administration
of justice, it was enunciated as well, that they
cannot turn a blind eye to vexatious and oppressive
conduct, discernable in relation to the proceedings.
That the principles of rule of law and due process
are closely linked with human rights protection,
guaranteeing a fair trial, primarily aimed at
ascertaining the truth, was stated. It was held as
well, that the society at large and the victims or
their family members and relatives have an inbuilt
right to be dealt fairly in a criminal trial and the
Patna High Court CR. APP (SJ) No.936 of 2016 67
denial thereof is as much injustice to the accused as
to the victim and the society.
56. Dwelling upon the uncompromising significance
and the worth of witnesses in the perspective of a
fair trial, the following revealing comments of
Bentham were extracted in paragraph 41:
"41. "Witnesses", as Bentham said: are the eyes
and ears of justice. Hence, the importance and
primacy of the quality of trial process. If the witness
himself is incapacitated from acting as eyes and
ears of justice, the trial gets putrefied and
paralysed, and it no longer can constitute a fair
trial. The incapacitation may be due to several
factors like the witness being not in a position for
reasons beyond control to speak the truth in the
court or due to negligence or ignorance or some
corrupt collusion. Time has become ripe to act on
account of numerous experiences faced by courts on
account of frequent turning of witnesses as hostile,
either due to threats, coercion, lures and monetary
considerations at the instance of those in power,
their henchmen and hirelings, political count and
patronage and innumerable other corrupt practices
ingeniously adopted to smother and stifle truth and
realities coming out to surface rendering truth and
Patna High Court CR. APP (SJ) No.936 of 2016 68
justice to become ultimate causalities. Broader
public and societal interests require that the victims
of the crime who are not ordinarily parties to
prosecution and the interests of State represented
by their prosecuting agencies do not suffer even in
slot process but irreversibly and irretrievably,
which if allowed would undermine and destroy
public confidence in the administration of justice,
which may ultimately pave way for anarchy,
oppression and injustice resulting in complete
breakdown and collapse of the edifice of rule of
law, enshrined and jealously guarded and protected
by the Constitution. There comes the need for
protecting the witness. Time has come when serious
and undiluted thoughts are to be bestowed for
protecting witnesses so that ultimate truth is
presented before the court and justice triumphs and
that the trial is not reduced to a mockery. The State
has a definite role to play in protecting the
witnesses, to start with at least in sensitive cases
involving those in power, who have political
patronage and could wield muscle and money
power, to avert the trial getting tainted and derailed
and truth becoming a causality. As a protector of its
citizens it has to ensure that during a trial in court
the witness could safely depose the truth without
Patna High Court CR. APP (SJ) No.936 of 2016 69
any fear of being haunted by those against whom he
has deposed."
57. It was underlined in Zahira Habibulla Sheikh
case (2004) 4 SCC 158 that if ultimately the truth is
to be arrived at, the eyes and ears of justice have to
be protected so that the interest of justice do not get
incapacitated in the sense of making the
proceedings before the courts, mere mock trials.
While elucidating that a court ought to exercise its
powers under Section 311 of the Code and Section
165 of the Evidence Act judicially and with
circumspection, it was held that such invocation
ought to be only to subserve the cause of justice and
the public interest by eliciting evidence in aid of a
just decision and to uphold the truth. It was
proclaimed that though justice is depicted to be
blindfolded, it is only a veil not to see who the party
before it is, while pronouncing judgment on the
cause brought before it by enforcing the law and
administer justice and not to ignore or turn the
attention away from the truth of the cause or the lis
before it, in disregard of its duty to prevent
miscarriage of justice. That any indifference,
inaction or lethargy displayed in protecting the
right of an ordinary citizen, more particularly when
Patna High Court CR. APP (SJ) No.936 of 2016 70
a grievance is expressed against the mighty
administration, would erode the public faith in the
judicial system was underlined. It was highlighted
that the courts exist to do justice to the persons who
are affected and therefore they cannot afford to get
swayed by the abstract technicalities and close their
eyes to the factors which need to be positively
probed and noticed. The following statement in
Jennison vs. Baker, (1972) 1 All ER 997 was
recalled:
"The law should not be seen to sit by limply, while
those who defy it go free, and those who seek its
protection lose hope."
58. It was declared in Zahira Habibulla Sheikh case
(2004) 4 SCC 158 that the courts have to ensure
that the accused persons are punished and that the
might or the authority of the state is not used to
shield themselves and their men and it should be
ensured that they do not wield such powers, which
under the Constitution has to be held only in trust
for the public and society at large. That if any
deficiency in investigation or prosecution is visible
or can be perceived by lifting the veil covering such
deficiency, the courts have to deal with the same
with an iron hand appropriately within the
Patna High Court CR. APP (SJ) No.936 of 2016 71
framework of law was underlined.
59. Referring to its earlier decision in Karnel Singh
vs. State of M.P. (1995) 5 SCC 518, it was
reiterated that in a case of a defective investigation,
the court has to be circumspect in evaluating the
evidence and may have to adopt an active and
analytical role to ensure that truth is found by
having recourse to Section 311 of the Code or at a
later stage also resorting to Section 391 instead of
throwing hands in the air in despair. It recalled as
well its observations in Ram Bihari Yadav v. State
of Bihar & others, (1998) 4 SCC 517 that the courts
are installed for justice oriented mission and thus if
a negligent investigation or omissions or lapses due
to perfunctory investigation are not effectively
rectified, the faith and confidence of the people
would be shaken in the law enforcing agency and
also in the institution devised for administration of
justice.
60. Though, as referred to hereinabove, trial was
completed and the accused persons were acquitted,
in the textual facts, this Court did direct retrial as
prayed for, to avoid subversion of the justice
delivery system and ordered the investigating
agency or those supervising the investigation to act
Patna High Court CR. APP (SJ) No.936 of 2016 72
in terms of Section 173(8) of the Code as the
circumstances would so warrant.
61. The observations and the propositions, though
made in the backdrop of a request for retrial, those
pertaining to the essentiality of a fair and complete
investigation and trial as well as the solemn duty of
the courts to ensure the discernment of truth to
administer even handed justice as institutions of
trust of public faith and confidence, are in our
estimate, of universal application and binding
effect, transcending the factual settings of a case.
An adverse deduction vis-à-vis the quality of
investigation and/a trial trivializing the cause of
justice, is however the essential pre-requisite, for
such remedial intervention by way of further
investigation, reinvestigation, additional evidence,
retrial etc. to be made objectively but assuredly for
the furtherance of the salutary objectives of the
justice dispensing system as contemplated in law, it
being of paramount pre-eminence.
62. This Court in Mohd. Hussain @ Julifikar Ali
(2012)9 SCC 408 was also seized of a situation
imploring for a retrial following the termination of
the prosecution principally on account of delay,
when juxtaposed to the demand for justice in cases
Patna High Court CR. APP (SJ) No.936 of 2016 73
involving grave crimes affecting the society at
large. The offence involved was under Sections
302/307/120B IPC and Sections 3 and 4 of the Explosive Substances Act, 1908 and had perpetrated an explosion in a passenger carrying bus. This Court amongst others recalled its observations in Kartar Singh vs. State of Punjab (1994) 3 SCC 569 that while dispensing justice, the courts should keep in mind not only the liberty of the accused but also the interest of the victim and their near and dear ones and above all the collective interest of the community and the safety of the nation, so that the public, may not lose faith in the system of judicial administration and indulge in private retribution. It however also took note of its ruling in State of M.P. vs. Bhooraji and others (2001) 7 SCC 679 that a de novo trial should be the last resort and that too only when such a course becomes desperately indispensable and should be limited to the extreme exigency to avert a failure of justice. It noted with approval the observation in P. Ramachandra Rao (supra) that it is neither advisable nor feasible nor judicially permissible to draw or prescribe an outer limit for conclusion of all criminal proceedings and that the criminal courts are not obliged to terminate the trial or Patna High Court CR. APP (SJ) No.936 of 2016 74 criminal proceedings merely on account of lapse of time. That such time limits cannot and will not by themselves be treated by any court as a bar to further continuance of the trial or proceedings or to terminate the same and acquit or discharge the accused, was emphatically underlined. Reference too was made of the decision in Zahira Habibulla H. Sheikh (2004) 4 SCC 158."
45. After scrutiny of the materials available on the record as well as the principle decided by the Apex Court, the following facts emerge out:-
I) There happens to be violation of direction of the Hon‟ble Apex Court given under Rajvir @ Raju Case. II) There happens to be non-appreciation of the material available on the record to search out by the learned lower Court whether charge under Section 302 I.P.C. is alterable or not.
III) No step has been taken by the Court even during evidence of PW-6 and PW-7, who had exhibited the certified photo copy of fard-bayan of deceased, Aarti Devi which, on account of her death became dying declaration, to procure the original.
IV) There should have been proper step at the end of the Court to procure original dying declaration. Patna High Court CR. APP (SJ) No.936 of 2016 75 V) In spite of presence of Exhibit-1, the Court failed to confront the same to appellant during course of statement recorded under Section 313 Cr.P.C.
VI) The learned lower Court failed to consider that in the fard-
bayan the word dowry has been inserted in different pen and in likewise manner, lacks discloser over time elapsed since marriage.
VII) The learned lower Court failed to consider the evidence of PW-9, informant as well as PW-10, husband of informant with regard to solemnization of marriage about 7-8 years ago since the death of deceased.
The aforesaid eventualities fell within the ambit of miscarriage of justice whereupon de novo trial is warranted.
46. Because of the fact that on account of grave illegality having been committed by the learned lower Court during conduction of trial leading to miscarriage of justice as held hereinabove. Though, Section 221 of the Cr.P.C. does permit to convict an accused even if he is not charged and is found legally permissible in terms of Section 464 Cr.P.C., but considering the fact that Section 304B I.P.C. as well as Section 302 I.P.C. lie on different pedestal, prescribing two distinct criterion for consideration and further, considering the principle decided by the Apex Court in Patna High Court CR. APP (SJ) No.936 of 2016 76 ShamSaheb M. Multtani vs. State of Karnataka reported in (2001) 2 SCC 577, it has become abundantly clear that the appellants have to be given an opportunity to defend themselves. That being so, the same is set aside. Appeal is allowed. Matter is remitted back to the learned lower Court to proceed afresh in light of finding recorded hereinabove. Appellants are directed to be produced before the learned lower Court.
(Aditya Kumar Trivedi, J) Vikash/-
AFR/NAFR A.F.R. CAV DATE 30.06.2017 Uploading Date 01.08.2017 Transmission 01.08.2017 Date