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CASE NO.: Appeal (crl.)  1331 of 2004

PETITIONER: Satyajit Banerjee and others  

RESPONDENT: State of West Bengal and others

DATE OF JUDGMENT: 23/11/2004

BENCH: Y K. SABHARWAL & D.M. DHARMADHIKARI

JUDGMENT: J U D G M E N T

(@ out of Special Leave Petition (Crl.) No. 676 of 2003)

Dharmadhikari J.

       Leave to appeal, as prayed for, is granted.         Counsel for the parties are heard at length.         The appellants are accused of commission of offence of alleged  cruel treatment meted out to deceased \026 Kana Banerjee, punishable  under Section 498A of the Indian Penal Code and abetting her suicidal  death punishable under Section 306, IPC.   On the evidence produced by the prosecution, the trial court  acquitted them.  But in revision, preferred by mother of the deceased,  the High Court by the impugned order has set aside the acquittal and  directed a de novo trial.       The necessary facts leading to the trial and eventual remand by the  High Court for fresh trial are as under:

       Appellant No.1 was married to the deceased in the year 1990.   She was employed in Railways and was regularly attending to her  duties.  Her parents also lived not far away from her matrimonial home.    On 25.10.1995 she was found dead.   The accused-husband had  informed her parents of her death.  It is the case of her mother that  soon after the incident, a First Information Report was lodged with the  police alleging harassment and cruel treatment to her by the accused.    The said FIR has not been produced.  The FIR which was produced was  lodged on 22.12.1995 which led to the prosecution,  and acquittal of the  accused by the trial court.    

       In the course of investigation a suicide note was seized from the  mother-in-law of the deceased.  The contents of the suicide note read  that the deceased had developed illicit relationship with some other  person and it was no longer possible for her to deceive her husband.  It  was further written in the suicide  note that she was lucky to get such a  husband and her father should treat him well and arrange for his  second marriage after her death.   

In his post-mortem report the Autopsy Surgeon opined that the  cause of death was poisoning and also hanging as ligature marks were  found on her neck.   

The prosecution examined mother of the deceased as PW8and  three other witnesses living in the neighbourhood.  The mother in her  deposition stated that in her frequent visits to the house of the accused  the deceased used to complain about her physical and mental torture  by the accused but had asked her mother not to disclose this fact to her

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father who was a heart-patient.  The mother also deposed that the  deceased was medically examined by Doctor Baidyanath Chakroborty  who had opined that there was no possibility of her bearing child in her  womb and she should opt for test tube baby.  She further deposed that  after one and a half years of her marriage, the deceased did conceive  but in the fallopian tube and that conception was terminated in a  hospital at Aliduar.  The allegation of the mother is that for the  aforesaid reason, the accused got annoyed and increased their torture  on her.  She stated that immediately after her daughter’s death, an FIR  was lodged by father of the deceased and subsequently she also lodged  an FIR in writing.  The delay in second FIR was explained saying that for  a few months she was mentally disturbed.   In the cross-examination  she admitted to have derived knowledge that her daughter had left a  suicide note containing the writings abovementioned.  When cross-  examined she did not dispute that the suicide note was not in the  writing of the deceased.   The other three witnesses PW2, PW3 and PW4  examined by the prosecution to prove the alleged cruel treatment of the  deceased by the accused did not support the prosecution case and were  declared hostile.  The opinion of the hand-writing expert, on the suicide  note, was filed but he was not examined in proof of his opinion.   

The trial court, by appreciating and weighing the evidence on  record did not accept the case of the prosecution.  The First Information  Report alleged to have been lodged soon after the incident was not  proved.  The second FIR was lodged after a delay of two months.  There  was no convincing explanation for the same.  The learned trial judge  observed that conduct of mother of the deceased showed that she had  tried to develop the prosecution case by introducing new stories step- by-step.  The trial judge has also observed thus:

"This suicidal note has come from the side of  prosecution and as such, this Court cannot rule  out the contents of the same.  Taking together  the contents of suicidal note and belated FIR I  have reasons to hold that this FIR was lodged          after two      months by some wrong advice.   Moreover, the explanation given in the FIR does  not appear to be convincing.  It is the settled  principle that there is every possibility of  concoction, embellishment, motivation in a  belated FIR  I have already observed that PW 8  has tried to develop the prosecution case by  introducing some new stories which is far away                      from the prosecution case and, as such, she  cannot be considered to be faithful witness.   Moreover she has failed to explain by convincing  reason about inordinate delay in lodging the FIR.   Her evidence has not been corroborated by a  single prosecution witness even."

   On the medical evidence, the trial court observes thus: "That the Autopsy Surgeon had recorded that there  was a ligature mark on her neck and the cause of  death was indosulfan-poison in her body."  

On the evidence produced, the trial court has recorded his  conclusion that evidence of cruel treatment to the deceased is not  reliable and the accused cannot be held guilty of the suicidal death.   The trial acquitted all of them.  The mother of the deceased preferred a revision to the High Court.   The High Court did take note of the various infirmities in the  prosecution case, such as seizure of suicide note by the investigating  agency 125 days after the incident, non-examination of Hand-Writing  Expert, belated FIR and single testimony of the mother of the deceased  on the allegation of cruelty.   The High Court also took note of the fact

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that the post-mortem reported presence of ligature mark on the neck of  the deceased indicating hanging.  Presence of poison in the body was  also found.  Even after noticing the above serious infirmities in the  prosecution case, the High Court observes: "The learned trial court ought to have been more,  without meaning any disrespect, dynamic and to    have taken active truth instead of resigning to the  fate as ordained by the prosecution."  

The High Court then went on to observe that where prosecution  lacks in bringing necessary evidence, the trial court ought to have  invoked its powers under Section 311 of the Cr.P.C. and summoned for  examining the father of deceased and other additional witnesses whom  it considered necessary.  The High Court by observing thus set aside  the order of acquittal passed by the trial court and directed remand of  the case ’for fresh decision from stage one.’  In the concluding part of  the its judgement, the High Court made the following observation: "Lest it may even unconsciously influence the mind of the learned trial  court, while on remand it is made absolutely clear that by way of guiding  formula the observations here-in-above have been made but it cannot be  said to have a binding effect on the learned trial court which would be  free to arrive at its independent conclusion in accordance with law and in  the suggested formula here-in-above."                           [Emphasis supplied]

         Learned counsel appearing for the accused assails the order of  remand made by the High Court and the above mentioned observations  made therein.  It is submitted that sub-section (3)  of Section 401  prohibits the High Court in its revisional jurisdiction  to convert  acquittal into conviction.  By directing examination of additional  witnesses under Section 311 and making observations mentioned  above it has indirectly suggested the trial court to record a conviction  on retrial.   

Strong exception has been taken on behalf of the accused to the  course adopted by the High Court of directing a retrial.  Reliance has  been placed on K.Chinnaswamy Reddy vs. State of Andhra  Pradesh [1963 (3) SCR 412 at 413] and  particularly on the following  observations mentioned therein  on the scope of  identical provisions of  revision in the old Code of Criminal Procedure. "That it was open to a High Court in revision and at the  instance of a private party to set aside an order of  acquittal though the State might not have appealed.   But such jurisdiction should be exercised only in  exceptional cases, as where a glaring defect in the  procedure or a manifest error of law leading to a  flagrant miscarriage of justice has taken place.  When  Section 439(4) of the Code forbids the High Court from  converting a finding of acquittal into one of conviction, it  is not proper that the High Court should do the same  indirectly by ordering a retrial.  It was not possible to lay  down the criteria for by which to judge such exceptional  cases.  It was, however, clear that the High Court would  be justified in interfering in cases such as (1) where the  trial court had wrongly shut out evidence sought to be  adduced by the prosecution (2) where the appeal court   had wrongly held evidence admitted by the trial court to  be inadmissible (3) where material evidence has been  overlooked either by the trial court or the court of  appeal or, (4) where the acquittal was based on a  compounding of the offence not permitted by law and  cases similar to the above."

It is further argued for the accused that merely because a  different view of the evidence is possible, the High Court,   in exercise

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of revisional powers ought not to have directed a retrial.  Reliance is  placed on Bansi Lal vs. Laxman Singh [1986 (3) SCC 444].

Lastly, it is submitted on behalf of the accused that direction of  the High Court to the trial court to record further evidence and take a  ’fresh decision from stage one’ is totally without jurisdiction as it  suggests that the evidence already recorded in the initial trial should be  given no consideration.

On the other side learned counsel appearing for the respondent- complainant made streneous efforts to support the impugned order for  retrial passed by the High Court.  It is submitted that prosecution has  left lacunae in the case which should not go in favour of the accused.   Reliance is placed on Ram Bihari Yadav vs. State of Bihar [1998 (4) SCC  517].  On behalf of the complainant very strong reliance has been placed  on the landmark decision of this Court in the case of Zahira Habibulla  Sheikh vs. State of Gujarat [2004 (4) SCC 158] which arise from  mass killings during Gujarat riots, commonly known to the public as  "Best Bakery Case."  It is submitted that the above decision of this  Court fully supports the course adopted by the High Court in remanding  the case for retrial.  It is also submitted that where prosecution has left  an inherent weakness in the case, it was not only expected but  incumbent on the trial judge to invoke his power under Section 311  Cr.P.C. and summon all relevant witnesses and evidence.  As the trial  court failed to discharge its duty to hold a fair trial to discover the truth,  the High Court was fully justified in directing a retrial and ’a fresh  decision from stage one.’

In the course of hearing of this case, we are informed that before  this Court stayed operation of the impugned judgment, the retrial  as  directed by the High Court had already  commenced.  The trial judge  has recorded the statement of father of the deceased and only  remaining part of the evidence is to be recorded.  

In exercise of the discretionary jurisdiction under Article 136 of  the Constitution and keeping in view the stage of retrial we refrain from  upsetting the whole judgment of the High Court.  We however consider  it necessary to set right some of the uncalled for observations  made by  the High Court in the impugned judgment directing retrial.

The  cases cited by the learned counsel show the settled legal  position that the revisional jurisdiction, at the instance of the  complainant, has to be exercised by the High Court only in very  exceptional cases where the High Court finds defect of procedure or  manifest error of law resulting in flagrant miscarriage of justice.    

The State has chosen not to prefer any appeal against acquittal.   In the present appeal by the complainant  it has filed a counter-affidavit  and  tried to support the order of remand passed by the High Court.   

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

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Since strong reliance has been placed on the Best Bakery Case  (Gujarat Riots Case- supra) it is necessary to record a note of  caution.  That was an extraordinary case in which this Court was  convinced that the entire prosecution machinery was trying to shield the  accused i.e. the rioters.  It was also found that the entire trial was a  farce.  The witnesses were terrified and intimidated to keep them away  from the court.  It is in the aforesaid extraordinary circumstances that  the court not only directed a de novo trial of the whole case but made  further directions for appointment of the new prosecutor with due  consultation of the victims.  Retrial was directed to be held out of the  State of Gujarat.  

The law laid down in the ’Best Bakery Case’ in the aforesaid  extraordinary circumstances, cannot be applied to all cases against the  established principles of criminal jurisprudence.  Direction for retrial  should not be made in all or every case where acquittal of accused is for  want of adequate or reliable evidence.  In Best Bakery case, the first  trial was found to be a farce and is described as ’mock trial.’  Therefore,  the direction for retrial was in fact, for a real trial.  Such extraordinary  situation alone can justify the directions as made by this Court in the  Best Bakery Case(supra).  

So far as the position of law is concerned we are very clear that  even if a retrial is directed in exercise of revisional powers by the HIgh  Court, the evidence already recorded at the initial trial cannot be erased  or wiped out from the record of the case.  The trial judge has to decide  the case on the basis of the evidence already on record and the  additional evidence which would be recorded on retrial.   

With the above clarification, we decline to interfere in the order of  remand.  To put the matter beyond any shadow of doubt we further  clarify and reiterate that the trial judge, after retrial, shall take a  decision on the basis of the entire evidence on record and strictly in  accordance with law, without in any manner, being influenced or  inhibited by anything said on the evidence in the judgment of the High  Court or this Court.