CRLR/58/2008 of SMT. KHILA DEVI Vs STATE OF UTTARAKHAND

IN THE HIGH COURT OF UTTARAKHAND AT NAINITALCriminal Revision No.58 of 2008

Smt. Khila Devi

....... Revisionist

State of Uttarakhand and others

…...Respondents

Ms. Pushpa Joshi, Senior Advocate for the revisionist.

Mr. Subhash Tyagi Bharadwaj, Deputy Advocate General for the State. Mr. R. C. Tamta, Advocate for the respondent nos.2 to 4. Mr. B.S. Adhikari, Advocate for the respondent nos.5 to 8.

Hon’ble Ravindra Maithani, J.(Oral)

The instant revision has been preferred against judgment and order dated 28.02.2008, passed in Sessions Trial No. 21 of 2006, State vs. Pappu Lal and others, by the court of learned Sessions Judge, Bageshwar (for short “the Case”). By the impugned judgment and order, the private respondent nos. 2 to 8, have been acquitted of the charge under Section 302 IPC.

2. Facts necessary for disposal of this revision, briefly stated, are as hereunder:

2.1. On 05.01.2005, respondent nos.2 to 8, namely, Pappu Lal, Govind Singh, Laxman Ram, Narayan Ram, Puran Chandra, Govind Prasad Chandra Ram and Bala Singh (these respondents shall hereinafter be referred to as “the accused”) took deceased Raju Ram from his house, when he was still on the bed. He was beaten by the accused with kicks, fists and lathis, indiscriminately. His wife and entire family was crying but they were asked to remain at distance. The deceased Raju Ram was dragged and at place “Badiya Tok” deceased Raju Ram died. When the accused were dragging and beating the deceased, his younger brother PW4 Prakash Ram with folded hands requested the accused to open the handcuffs and spare him. But, the accused did not yield to it. report of the Govind Singh, Laxman Ram, Narayan Ram, Puran Chandra, Govind Prasad Chandra Ram and Bala Singh (these respondents shall hereinafter be referred to as “the accused”) took deceased Raju Ram from his house, when he was still on the bed. He was beaten by the accused with kicks, fists and lathis, indiscriminately. His wife and entire family was crying but they were asked to remain at distance. The deceased Raju Ram was dragged and at place “Badiya Tok” deceased Raju Ram died. When the accused were dragging and beating the deceased, his younger brother PW4 Prakash Ram with folded hands requested the accused to open the handcuffs and spare him. But, the accused did not yield to it. report of the

incident was lodged by the PW3 Khila Devi, wife of the deceased. Based on it, an FIR under Section 302 IPC was lodged against the accused. Investigation was carried out, inquest and post-mortem of the deceased was conducted. Site plan was prepared and charge sheet was submitted against the accused. It is the basis of the case.

2.2. On 05.01.2012 the accused were charged under Section 302 IPC, to which, they denied and claimed trial. In order to prove its case, prosecution examined as many as ten witnesses, namely, PW1 Mohan Ram, PW2 Shanti Arya, PW3 Khila Devi, PW4 Prakash Ram, younger brother of the deceased, PW5 Mohan Ram, PW6 Vijay Pal Singh Mehta, PW7 Arjun Lal, PW8 Bachan Singh Rana, PW9 B. L. Verma and PW10 M. R. Tamta, the Investigating Officer, who submitted the charge sheet in the case. In fact, there are two Investigating Officers in the case. One is PW8 Bachan Singh Rana, who prepared the site plan, but subsequently it appears that investigation was handed over to CBCID. Charge sheet was submitted by the CBCID. Accused were examined under Section 313 Code of Criminal Procedure (“Code”). All of them denied the prosecution evidence and said that they have been falsely implicated, due to enmity. By the impugned judgment and order, all the accused have been acquitted. Aggrieved, the informant filed the instant revision.

3. Heard learned counsel for the parties through video conference and perused the record.

4. Learned counsel for the revisionist would submit that it is case of custodial death. Burden was upon the accused, in whose custody, the deceased died to explain the circumstances under which

the deceased died. It is argued that this burden has not been discharged by the accused. Even in the examination under Section 313 of Code, the accused did not spell word to explain as to how did it happen. It is argued that it is an illegality, which vitiates the entire trial and in exercise of its revisional jurisdiction, the impugned judgment and order deserves to be set-aside and the case remanded for re-trial.

5. On the other hand, on behalf of the four accused, namely respondent nos.5 to 8, learned counsel Mr. B. S. Adhikari would submit that it is no evidence case. Learned counsel has referred to the site plans prepared during investigation to indicate that they did not show the presence of PW4 Prakash Ram anywhere, near the place of incident. Based on it, it is argued that, in fact, it is case of no evidence and there is no question of any perversity. It is argued that the accused had discharged their burden when they gave it in writing that how did the deceased die. Reference has been made to letter written by an accused Pappu Lal, which is Ex. A19, as proved by PW5 Mohan Ram, in which, it is stated that when in custody, the deceased jumped in gorge and died.

6. Learned counsel for the respondent nos. 5 to 8 would further argue that, in fact, doctor who conducted the post-mortem also told it to the I.O. PW 10 M.R. Tamta that the death could be caused due to fall from the height. It is argued that in the revision, the evidence cannot be appreciated and jurisdiction is quite limited. Learned counsel would refer to the principles of law, as laid down in the case of Bansi Lal vs. Laxman Singh (1986) 3 SCC 444. In the case of Bansi Lal (supra), the Hon’ble Supreme Court referring the principle of law laid down on the subject observed that “the mere circumstance that finding of fact recorded by the trial court may in the opinion of the High Court be wrong, will not justify the setting aside the order of acquittal and directing re-trial of the accused.” (Para 10)

7. On behalf of the respondent nos. 2 to 4 Mr. R. C. Tamta, Advocate would submit that he adopts the arguments advanced by Mr.B. S. Adhikari, Advocate for the respondent nos.5 to 8. In addition to it, he would argue that on the fateful day, the accused were performing their duties; they had no motive or intention to commit any offence; post-mortem report is not proved; there has been no evidence and in the revision interference cannot be made. In support of his contention learned counsel placed reliance upon the principles of law, as laid down, in the case of Akalu Ahir and others Vs. Ramdeo Ram, 1973 2 SCC 583. In the case of Akalu Ahir (supra), Hon’ble Supreme Court discussed the scope of revisional jurisdiction of the High Court and observed that “the High Court when approached by private party for exercising its power of revision from an order of acquittal, should appropriately refrain from interfering except when there is glaring legal defect of serious nature which has resulted in grave failure of justice.” (Para 8)8. It has also been observed in the same case that “it is only in glaring cases of injustice resulting from some violation of fundamental principles of law by the trial court that the High Court is empowered to set aside the order of acquittal and direct retrial of the acquitted accused. From the very nature of this power it should be exercised only in exceptional cases and with great care and caution. Trials are not to be lightly set aside when-such orders expose the accused persons to fresh trial with all its consequential harassment” and “this jurisdiction should be exercised only in exceptional cases when"there is some glaring defect in the procedure or there is manifest error on point of law and consequently there has been flagrant miscarriage of justice”” (Para 8)

9. In the case Akalu Ahir (supra), the Hon’ble Supreme Court while referring to earlier judgements also recorded as hereunder:

“No doubt, in the opinion of this Court, no criteria for, determining such exceptional cases which would cover all contingencies for attracting

the High Court's power of ordering re-trial can be laid down. This Court, however, by way of illustration, indicated the following categories of cases which would justify the High Court in interfering with finding of acquittal in revision

(i)Where the, trial court has no jurisdiction to try the case, but has still acquitted the accused; has still acquitted the accused;

(ii) Where the trial court has wrongly shut out evidence which the prosecution wished to produce; the prosecution wished to produce;

(iii) Where the appellate court has wrongly held the evidence which-was admitted by the trial court to be inadmissible; which-was admitted by the trial court to be inadmissible;

(iv) Where the material evidence has been over-looked either by the trial court or by the appellate court; and the trial court or by the appellate court; and

(v) Where the acquittal is based on compounding of the offence which is invalid under the law. offence which is invalid under the law.

These categories were however, merely illustrative and it was clarified that other cases of similar nature can also be properly held to be of exceptional nature where the High Court can justifiably interfere with the order of acquittal” (Para 8) clarified that other cases of similar nature can also be properly held to be of exceptional nature where the High Court can justifiably interfere with the order of acquittal” (Para 8)

10. This is revision against acquittal. The basic principle of criminal law is that an accused is presumed to be innocent until proven guilty and once finding of acquittal is recorded, this presumption becomes little more stronger. It is settled law that even in the cases of appeal also an order of acquittal has not to be interfered with lightly. But, here is the case, where the acquittal is challenged in revision. The jurisdiction of revision is not parallel to that of appeal.

11. In the case of State of Maharashtra Vs. Jagmohan Singh Kuldeep Singh Anand, (2004) 7 SCC 659, the Hon’ble Supreme Court observed that “The provisions contained in Section 395 to Section 401 CrPC, read together, do not indicate that the revisional power of the High Court can be exercised as second appellate power” (Para 22)

12. In the case of State of Maharashtra Vs. Sujay Mangesh Poyarekar, (2008) 9 SCC 475, the Hon’ble Supreme Court observed that “now it is well settled that revisional jurisdiction can be exercised sparingly and only in exceptional cases. revisional Court cannot convert itself into regular Court of Appeal.” (Para 16)

13. bare perusal of the provisions also makes it clear that revisional jurisdiction is exercised for the purpose of satisfying as to the correctness, legality or propriety of the judgment.

14. In the case of Amit Kapoor Vs. Ramesh Chandra and another, (2012) 9SCC 462, in paragraph 12, Hon’ble Court observed that “if one looks into the various judgments of this Court, it emerges that the revisional jurisdiction can be invoked where the decisions under challenge are grossly erroneous, there is no compliance with the provisions of law, the finding recorded is based on no evidence, material evidence is ignored or judicial discretion is exercised arbitrarily or perversely. These are not exhaustive classes, but are merely indicative. Each case would have to be determined on its own merits.” (Para 12)

15. Evidence need not be appreciated except where it is necessary to examine the perversity etc. as observed in the case of Amit Kapoor (supra). The credibility of evidence is perhaps not within the domain of revisional court. But, if material evidence is ignored or irrelevant material is considered as well as some perversity takes place, the revisional jurisdiction comes into play. The question of credibility, reliability or trustworthiness of witness may perhaps be not examined in revision. The word “legality” is of wide magnitude, it cannot be put into some straight jacket formula. There are numerous laws and corresponding procedures, bylaws etc. Any violation may perhaps make judgment illegal. When legality is to be examined facts are also required to be seen to the extent of examining legality only. Not for the purpose of appreciating the evidence. Not for the testing the credibility, reliability and trustworthiness of the witness. To this limited extent only, this Court ventures to proceed with the case.

16. The core argument on behalf of the revisionist is with regard to “burden of proof”. It is being argued that prosecution has proved that deceased was taken from his house, handcuffed, by the accused. Deceased was beaten up by the accused. They were requested to spare the deceased, but they did not. PW4 Prakash Ram followed, requested them with folded hands, but they did not yield.

17. On behalf of respondent nos. 5 to 8, learned counsel may refer to the site plans. There are two site plans. The Court will refer to them in short while. But, before that it has to be seen as to what is the principle governing burden of proof.

18. What is the evidence? How it is to be proved? All these have been defined under the Indian Evidence Act, 1872 (for short “Evidence Act”). Section 3 defines evidence, it need not be quoted. Part (III) Chapter VII of the Evidence Act deals with burden of proof and according to Section 101 Evidence Act, “whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exists”. And second paragraph of Section 101 Evidence Act reads as “when person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.”

19. The golden rule of criminal jurisprudence is that it is the prosecution to prove the case beyond reasonable doubt. But, is it the prosecution is all cases to prove each and every fact which may bring home the guilt of the accused? Is not there any departure from the basic rule? And if so, what are those rules and how departure can be made?

20. There are laws now growing in numbers not only in India but across the globe, where the basic principle of burden of proof has been changed from “presumption of innocence” to “presumption of guilt”. This has been done by way of statute. But perhaps significance of burden of proof is quite different.

21. Section 102 Evidence Act, defines on whom burden of proof lies, according to it:-

“The burden of proof in suit or proceeding lies on that person who would fail if no evidence at all were given on either side”.

22. Section 106 is one of those sections, which is departure from the general rule. According to Section 106 Evidence Act, “when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.”

23. Long ago in the case of Narayan Govind Gavate Etc Vs. State of Maharashtra, (1977) 1SCC 133, while interpreting some issues with regard to land which were sought to be acquired under the provision of Land Acquisition Act, 1894, the Hon’ble Supreme Court interpreted the word “proof” and provisions relating to Section 106 of Evidence Act also. It was held as hereunder:-

“19."Proof", which is the effect of evidence led, is defined by the provisions of section 3 of the Evidence Act. The effect of evidence has to be distinguished from the duty or burden of showing to the Court what conclusions it should reach. This duty is called the "onus probandi", which is placed upon one of the parties, in accordance with appropriate provisions of law applicable to various situations, but, the effect of the evidence led is matter of inference or conclusion to be arrived at by the Court.

20. The total effect of evidence is determined at the end of proceeding not merely by considering the general duties imposed by sections 101 and 102 of the Evidence Act but also the special or particular ones imposed by other provisions such as sections 103 and 106 of the Evidence Act. Section 103 enacts: "103. The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person".

And, section 106 lays down:

"106. When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.”

24. In the case of Trimukh Maroti Kirkan Vs. State of Maharashtra, (2006)10 SCC 681, the Hon’ble Supreme Court interpreted the provisions of Section 106 Evidence Act and observed that “here it is necessary to keep in mind Section 106 of the Evidence Act which says that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Illustration (b) appended to this section throws some light on the content and scope of this provision and it reads:

“(b) is charged with traveling on railway without ticket. The burden of proving that he had ticket is on him.” (Para 14)

It was further observed that “in view of Section 106 of the Evidence Act, there will be corresponding burden on the inmates of the house to give cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation.”(Para 15) (emphasis supplied)

25. There is another case with regard to custodial death. In the case of Sunil Mahadeo Jadhav Vs. State of Maharashtra, (2013) 15 SCC 177, Section 106 of Evidence Act was further discussed and Hon’ble Court observed as hereunder:-

“36. Section 106 of the Evidence Act states that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Since it was Accused 1 who had arrested the deceased at 00.45 a.m on 17-12-1985 and kept the deceased in police lock-up after his arrest was complete, it was for Accused 1 to explain the injuries on the body of the deceased other than those which were noticed in Ext. 76. Accused 1 has not stated anything in this regard in his statement under Section 313 of the Code of Criminal Procedure, 1973 (for short “CrPC”) nor adduced any evidence in defence to explain these injuries. In the absence of any explanation by Accused 1 or any evidence adduced on behalf of Accused 1 to explain these injuries on the body of the deceased,there can be no escape from the conclusion that these injuries have been caused on the body of the deceased by Accused 1 and no one else.” (emphasis supplied)

26. . Further in the case of State of Rajasthan Vs. Thakur Singh, (2014) 12 SCC 211, the Court while interpreting the provisions of Section 106 of Evidence Act referred to some earlier cases and held as hereunder:-

“16. Way back in Shambhu Nath Mehra v. State of Ajmer[1]this Court dealt with the interpretation of Section 106 of the Evidence Act and held that the section is not intended to shift the burden of proof (in respect of crime) on the accused but to take care of situation where fact is known only to the accused and it this Court dealt with the interpretation of Section 106 of the Evidence Act and held that the section is not intended to shift the burden of proof (in respect of crime) on the accused but to take care of situation where fact is known only to the accused and it

1 AIR 1956 SC 404

is well nigh impossible or extremely difficult for the prosecution to prove that fact. It was said: (AIR p. 406, para 11)

“11. This [Section 101] lays down the general rule that in criminal case the burden of proof is on the prosecution and Section 106 is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult, for the prosecution to establish facts which are “especially” within the knowledge of the accused and which he could prove without difficulty or inconvenience.

The word “especially” stresses that. It means facts that are pre-eminently or exceptionally within his knowledge. If the section were to be interpreted otherwise, it would lead to the very startling conclusion that in murder case the burden lies on the accused to prove that he did not commit the murder because who could know better than he whether he did or did not.”

27. In the case of Rajender @ Rajesh @ Raju vs State (NCT of Delhi), (2019) 10 SCC 623, the Hon’ble Court observed as hereunder:-

“12.2.4 Having observed so, it is crucial to note that the reasonableness of the explanation offered by the accused as to how and when he/she parted company with the deceased has bearing on the effect of the last seen in case. Section 106 of the Indian Evidence Act, 1872 provides that the burden of proof for any fact that is especially within the knowledge of person lies upon such person. Thus, if person is last seen with the deceased, he must offer an explanation as to how and when he parted company with the deceased. In other words, he must furnish an explanation that appears to the Court to be probable and satisfactory, and if he failsto offer such an explanation on the basis of facts within his special knowledge, the burden cast upon him under Section 106 is not discharged. Particularly in cases resting on circumstantial evidence, if the accused fails to offer reasonable explanation in discharge of the burden placed on him, such failure by itself can provide an additional link in the chain of circumstances proved against him. This, however, does not mean that Section 106 shifts the burden of proof of criminal trial on the accused. Such burden always rests on the prosecution. Section 106 only lays down the rule that when the accused does not throw any light upon facts which areespecially within his/her knowledge and which cannot support anytheory or hypothesis compatible with his innocence, the Court can consider his failure to adduce an explanation as an additional link which completes the chain of incriminating circumstances.”

(emphasis supplied)

28. The question in the instant case is whether prosecution has proved its case to the extent that the burden goes to the accused to

give explanation. Keeping silence is good till the accused is not required to explain. Initially, prosecution has to prove its case to the extent, it can prove. The burden lies on the prosecution as per Section 102 Evidence Act. But, then from point when it appears that some facts are especially within the knowledge of the accused, accused is bound to give explanation. Then he cannot keep silence. The silence will go against him. The silence can then be considered as an additional link which completes the chain of incriminating circumstance.

29. In the instant case, according to the prosecution, the accused took the deceased Raju Ram from his house when still he was on the bed, beaten him and thereafter, the deceased died. What happened in between is something which may be in dispute. The Court is not going into that aspect of the matter. Who followed the accused? How the accused was followed? Who saw the deceased in whatever condition are definitely matter for appreciation of evidence.

30. But, there is no doubt to the fact that on 05.01.2005, early in the morning at 5:00, the deceased was taken from his house by the accused. They were seven in number. They are Revenue Police Officers. They are the persons, who investigate the crimes. Respondent no.2 Pappu Lal himself had given communication to the SDM, Kapkot, which is Ex. A19. Interestingly, this Ex. A19 has been proved by PW5 Mohan Ram, who himself was senior officer in Revenue Department. Respondent no.2 Pappu Lal writes in this communication Ex. A19, which is dated 05.01.2005, that when they arrested deceased Raju Ram and were bringing him to the Head Quarter he pushed the Revenue Officers and jumped into the gorge. He fell at distance of 200 meter and died. PW5 had spoken about it. PW7 Arjun Lal is also one of the Revenue Officers at the relevant time. He also tells that on the fateful day at 9:00 in the morning, respondent Pappu Lal and Puran Chand came to him panting. When this witness asked them as to what

had happened they told what do you ask now. Whatever was to happen had happened. It is not only that the wife and brother of the deceased, who are PW3 Khila Devi and PW4 Prakash Chandra respectively, but, the senior officer of respondent no.2 Pappu Lal have also stated that the deceased was in the custody of the Revenue Officers. As stated, respondent no.2 Pappu Lal had given in writing to his higher officer that from his custody the deceased escaped himself and jumped into the gorge and died. How did he die?

31. Initially, the prosecution has proved that the deceased was taken by the accused and when he was in their custody and he died. Here comes the application of Section 106 of the Evidence Act. The accused cannot keep silence. They have to offer explanation. They were required to tell the Court as to what had happened to the satisfaction of the court. What they did? None of the accused gave any explanation. In their examination under Section 313 of the Code all of them have stated that they have been falsely implicated. Even they have not admitted that they had arrested the deceased. The accused were the best persons to tell the truth to the court.

32. It is question of placing the burden of proof. Learned court below in its judgment believed the arguments advanced on behalf of the accused, that when the deceased was being brought by the accused he jumped into the gorge and died. But the accused has not offered any explanation, it is mere an argument. In page 9 of the impugned judgment, learned court below disbelieved the statement of PW3 Khila Devi, wife of the deceased and held that prosecution could not prove the case. Not only this, the learned court below also observed that the prosecution could not prove post mortem. This aspect will also be referred in short while. It is true that in the site plans prepared by the Investigating Officer, the presence of PW4 Prakash Ram is not shown. But as stated, the entire context was changed when prosecution was asked to prove each and every fact.

Whereas, Section 106 Evidence Act demanded the accused to explain the circumstances under which the deceased died. Learned court below while placing entire burden of proof on prosecution has definitely committed an illegality

33. The role of the trial court is not only to count errors of the parties. The court cannot be mute spectator. It cannot act simply like Referee. Section 311 of the Code empowers the court to summon any person as witness if his evidence appears to be essential to the just decision of the case. In the instant case, the death of Raju Ram is questioned. Did he die due to fall from the hills or was he killed and thrown down the hills where his dead body was found. These were really material questions. Simply some person proved the signature of the doctor and at the time of writing judgment the court observed that the post mortem report is not proved. Perhaps the court failed in its duty to summon the doctor.

34. In the case of Rajaram Prasad Yadav Vs. State of Bihar and another, (2013) 14 SCC 461, the Hon’ble Supreme Court culled down the principles which governed the provisions of Section 311 of the Code and observed as hereunder:-

“17. From conspectus consideration of the above decisions, while dealing with an application under Section 311 CrPC read along with Section 138 of the Evidence Act, we feel the following principles will have to be borne in mind by the courts:

17.1. Whether the court is right in thinking that the new evidence is needed by it? Whether the evidence sought to be led in under Section 311 is noted by the court for just decision of case?

17.2. The exercise of the widest discretionary power under Section 311 CrPC should ensure that the judgment should not be rendered on inchoate, inconclusive and speculative presentation of facts, as thereby the ends of justice would be defeated.

17.3. If evidence of any witness appears to the court to be essential to the just decision of the case, it is the power of the court to summon and examine or recall and re-examine any such person. 17.4. The exercise of power under Section 311 CrPC should be resorted to only with the object of finding out the truth or

obtaining proper proof for such facts, which will lead to just and correct decision of the case.

17.5. The exercise of the said power cannot be dubbed as filling in lacuna in prosecution case, unless the facts and circumstances of the case make it apparent that the exercise of power by the court would result in causing serious prejudice to the accused, resulting in miscarriage of justice.

17.6. The wide discretionary power should be exercised judiciously and not arbitrarily.

17.7. The court must satisfy itself that it was in every respect essential to examine such witness or to recall him for further examination in order to arrive at just decision of the case.

17.8. The object of Section 311 CrPC simultaneously imposes duty on the court to determine the truth and to render just decision.

17.9. The court arrives at the conclusion that additional evidence is necessary, not because it would be impossible to pronounce the judgment without it, but because there would be failure of justice without such evidence being considered.

17.10. Exigency of the situation, fair play and good sense should be the safeguard, while exercising the discretion. The court should bear in mind that no party in trial can be foreclosed from correcting errors and that if proper evidence was not adduced or relevant material was not brought on record due to any inadvertence, the court should be magnanimous in permitting such mistakes to be rectified.

17.11. The court should be conscious of the position that after all the trial is basically for the prisoners and the court should afford an opportunity to them in the fairest manner possible. In that parity of reasoning, it would be safe to err in favour of the accused getting an opportunity rather than protecting the prosecution against possible prejudice at the cost of the accused. The court should bear in mind that improper or capricious exercise of such discretionary power, may lead to undesirable results.

17.12. The additional evidence must not be received as disguise or to change the nature of the case against any of the party.

17.13. The power must be exercised keeping in mind that the evidence that is likely to be tendered, would be germane to the issue involved and also ensure that an opportunity of rebuttal is given to the other party.

17.14. The power under Section 311 CrPC must therefore, be invoked by the court only in order to meet the ends of justice for strong and valid reasons and the same must be exercised with care,

caution and circumspection. The court should bear in mind that fair trial entails the interest of the accused, the victim and the society and, therefore, the grant of fair and proper opportunities to the persons concerned, must be ensured being constitutional goal, as well as human right.”

35. Further in the case of State of Haryana Vs. Ram Mehar and others, (2016) 8 SCC 762, the Hon’ble Supreme Court referred to various other authorities as hereunder:

“23 In Bablu Kumar and others v. State of Bihar[2] the Court referred to the authorities in Manu Sharma v. State (NCT of Delhi[3], Rattiram[4], J. Jayalalithaa[5], State of Karnataka v. K. Yarappa Reddy[6 ]and other decisions and came to hold that: (Bablu Kumar Case[7], SCC p. 798, para 22)

“22. Keeping in view the concept of fair trial, the obligation of the prosecution, the interest of the community and the duty of the court, it can irrefragably be stated that the court cannot be silent spectator or mute observer when it presides over trial. It is the duty of the court to see that neither the prosecution nor the accused play truancy with the criminal trial or corrode the sanctity of the proceeding. They cannot expropriate or hijack the community interest by conducting themselves in such manner as consequence of which the trial becomes farcical one.

It has been further stated that: (SCC p. 798, para 22)

“22….The law does not countenance “mock trial”. It is serious concern of society. Every member of the collective has an inherent interest in such trial. No one can be allowed to create dent in the same. The court is duty-bound to see that neither the prosecution nor the defence takes unnecessary adjournments and take the trial under their control.

We may note with profit though the context was different, yet the message is writ large. The message is – all kinds of individual notions of fair trial have no room.”

36. In the instant case, learned trial court failed its duty to summon the witnesses whose evidence was essential for the just decision of the case.

37. Having considered all the aspects of the matter, this Court is of the view that in fact it is case in which learned court below erroneously placed entire burden of proof upon the prosecution and did not apply the provision of Section 106 Evidence Act. This is an illegality. Not only this, learned court below also failed in its duty to

2 Bablu Kumar and others v. State of Bihar, (2015) 8 SCC 787

3 Manu Sharma v. State (NCT of Delhi ), (2010) 6 SCC 1

4 Rattiram v. State of M.P., (2012) 4 SCC 516

5 J. Jayalalithaa v. State of Karnataka, (2014) 2 SCC 401

6 State of Karnataka v. K. Yarappa Reddy, (1999) 8 SCC 715

7Bablu Kumar and others v. State of Bihar, (2015) 8 SCC 787

invoke the provision of Section 311 of the Code to summon any witness, whose presence was essential for the just decision of the case, especially the doctor who conducted post-mortem.

38. Accordingly, this Court is of the view that it is case in which revisional jurisdiction should be invoked. It is case, which warrants that interference must be made. The impugned judgment and order is not in accordance with law. Therefore, the revision deserves to be allowed.

39. The revision is allowed.

40. Impugned judgment and order dated 28.02.2008 is set aside. The case is remanded for re-trial from the stage of recording the statement of the accused under Section 313 of the Code.

41. Learned court below may consider summoning the witnesses whose evidence is essential to the just decision of the case. Similarly, accused persons are also free to get them examined afresh under Section 313 of the Code, and adduce evidence in their defence, if any.

42. The Learned Trial Court shall decide the case in view of the observations made in this judgement.

43. Let copy of this judgment along with Lower Court Record be transmitted to the Court below for compliance.

Jitendra

(Ravindra Maithani, J.) 09.07.2020