(1.) Appellants being aggrieved by their conviction for offence under Sections 304B, 498A and 201 of the Indian Penal Code and sentence of rigorous imprisonment for life under Section 304B of the Indian Penal Code, passed by 5th Additional Sessions Judge, Gaya in Sessions Trial No. 7 of 2000 (67 of 2000) have preferred this appeal. No separate sentence has been awarded for other offences, for which the appellants have been held guilty.
(2.) Prosecution story, according to the written report given by P. W. 8 Rajendra Choudhary before the Officer-Incharge of Gurua police station on 10-1-1999, is that his daughter Sarswati Devi was married four years earlier to appellant No.l Surendra Choudhary according to Hindu rites. After the marriage, according to the report Sarswati Devi started living with her husband at her matrimonial-home. It has been alleged in the first information report that when his daughter used to come to her parents place, she used to narrate to her mother that her husband (appellant No.l), father-in-law Rani Jatan Choudhary (appellant No.2) and mother-in-law Deo Rani Devi @ Bardahi Devi (appellant No.3) make demand of dowry, particularly Scooter. In the written report he has also alleged that when he used to go tp matrimonial-home of his daughter, she used to narrate him about the demand made by her in-laws. According to the informant, on 25-12-1998 his son-in-law appellant Surendra Choudhary came to his house and stated that he had struck a deal for purchase of second-hand motorcycle for a sum of Rs. 20,000/- and demanded said amount for the purchase thereof. Informant showed his inability to pay the amount and stated that some amount shall be paid in the marriage of his son, whereupon a
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ppellant Surendra Choudhary got annoyed and left the place without taking meal. According to the informant, on 7-1-1999 when the informant went to the matrimonial-home of his daughter, her father-in-law appellant No.2 Ram Jatan Choudhary stated that Sarswati Devi had died and requested him to take away her son. Informant alleged that his daughter has been done to death by the appellants i.e. husband, father-in-law and mother-in-law for non-fulfilment of the demand of dowry. On the basis of the aforesaid information, Gurua P.S. case No.2 of 1999 was registered under Section 304B and 201 of the Indian Penal Code.
(3.) Police after investigation submitted charge-sheet and the appellants were ultimately committed to the Court of Session. During the trial they were charged for caus- ing the death of Sarswatl Devi for the demand of dowry, as also subjecting her to cruelty and for disappearance of the evidence for screening the legal punishment punishable under Section 304B/34, 498A and 201 of the Indian Penal Code. Appellants refuted the charge and claimed to be tried.
(4.) Prosecution in support of its case had altogether examined ten witnesses, out of whom, P. W. 8 Rajendra Choudhary is the informant. P. W. 9 Chhotu Prasad is a formal witness and P. W. 10 Anil Kumar Paswan is the Investigating Officer of the case. P.Ws.1 to 7 have been examined to support the case of the prosecution. Appellants denied to have committed the offence and pleaded false implication. Their specific plea is that the deceased died of cold and diarrhoea. However, no defence witness has been examined. Besides aforesaid the mother of the deceased has been examined as Court witness No. 1 and her father informant also as Court witness No.2 (sic.l).
(5.) Before we discuss the evidence of the Witnesses, we deem it expedient to narrate the manner in which the trial has been conducted. Last of the witnesses shown in the charge-sheet was examined on 11-4-2001. In fact, the Counsel conducting the prosecution informed to the Court on the said 4ay that all the witnesses cited in the charge-sheet have already been examined. However, the learned Judge finding that the name of the mother of the victim is not shown as a witness in the case and observing that young "women remains more close to her mother" and on the expectation that she must had narrated ill-treatment meted to her by her in-laws, thought it proper to examine her. Accordingly the learned Judge suo motu exercised his power under Section 311 of the Code of Criminal Procedure and by order dated 11-4-2001 adjourned the case to 3rd of May, 2001 for her examination. Mother of the deceased was ultimately examined as Court witness No.1 on 4-5-2001.
(6.) Thereafter the statements of the appellants were recorded under Section 313 Of the Code of Criminal Procedure on 9-5-2001 and the case was adjourned for argument. On 12-7-2001 the learned Judge observed that while going through the record he has found that the evidence of the informant has already been recorded but his re-examination is essential for the ends of justice. In the aforesaid premises he exercised his power under Section 311 of the Code of Criminal Procedure suo motu again and directed for re-examination of P. W. 8 Rajendra Choudhary. Ultimately said Rajendra Choudhary was examined as Court witness No.2 (sic 1) on 5-1-2002. Thereafter the statements of the appellants were again recorded under Section 313 of the Code of Criminal Procedure on 10-1-2002.
(7.) P. W. 1 Kailash Mahto, P. W. 2 Ramesh Rajak, P. W. 3 Bindeshwari Prasad, P. W. 4 Amresh Paswan, P. W. 5 Binay Paswan, P. W. 6 Bedami Devi and P. W. 7 Chandradeep Rajak have stated in their evidence that they had learnt that the deceased died of diarrhoea and in fact the relative of the deceased from the parents side also participated in cremation. At the first instance, we wondered as to why the prosecution had not declared them hostile and cross-examined them, but we have been told that in fact during the course of investigation itself, these witnesses have stated that the deceased died of diarrhoea. Perhaps this was the justification, not to declare them hostile.
(8.) P. W. 8 Rajendra Choudhary is the informant of the case and father of the deceased. He had stated in his evidence that the marriage of his daughter had taken place about five years ago and she died in December, 1999 because of cold and diarrhoea. He has been declared hostile. In the cross examination he had further stated that the fact of death of his daughter was intimated to him and in fact he had gone to her matrimonial home. P. W. 9 Chhotu Prasad is an Advocate's Clerk, who had identified the signature of the Officer-Incharge of the police station and proved the formal F. I. R. P. W. 10 Anil Kumar Paswan is the Investigating Officer of the case and in paragraph 6 of the cross-examination he had stated that the witnesses, whose names find place in paragraphs 7 to 12 and paragraphs 44 and 45 during the course of investigation, had stated that the deceased died of cold and diarrhoea.
(9.) Puniya Devi, the mother of the deceased, who as stated earlier has been examined as Court witness No.l, has stated that her daughter Sarsatiya Devi was married to the appellant Surendra Choudhary 5-6 years earlier and she died four years after the marriage at her matrimonial-home. She had specifically stated that her in-laws had informed them about her death and she along with her husband had gone to her matrimonial place. As regards the cause of death, she deposed that her daughter died of diarrhoea. In the cross-examination she had stated that she is deposing voluntarily without any pressure.
(10.) P.W. 8 Rajendra Choudhary has been examined later on and his deposition is in the form of question and answer. In answer to the Court questions he had stated that his daughter was married in the year 1993 and died in January, 1999 on account of non-fulfilment of the demand of dowry, which used to be made by his son-in-law appellant Surendra Choudhary. In answer to another question he had stated that his son-in-law started demanding dowry, four months after the marriage. He had specifically stated that on 20-12-1998 his son-in-law came and stated that he had arranged a second-hand motorcycle for a sum of Rs. 20,000/- and for its purchase he demanded money, which demand he could not fulfil and promised to pay some money in the marriage of his son. This was not liked by his son-in-law and without taking food he left the place. The learned Judge had drawn his attention to his evidence recorded earlier, wherein he had stated that his signature was obtained by the Sub-Inspector of Police on a plain paper. He said so, as he was threatened by appellant Ram Jatan Choudhary. He had also stated that the statement given by him in the Court earlier was under threat.
(11.) The learned Judge placing reliance on the evidence of Rajendra Choudhary recorded as C. W. 2 held that the prosecution has been able to prove its case beyond all reasonable doubt and, accordingly, convicted and sentenced the appellants as above.
(12.) Mr. Hare Krishna Kumar, appearing on behalf of the appellants submits that the statements of the appellants were recorded on 9-5-2001 and thereafter by order dated 12-7-2001 the learned Judge had directed for re-examination of P. W. 8 Rajendra Choudhary. He submits that there was no occasion for the learned Judge to direct his re-examination. He submits that neither the witness nor the Public Prosecutor had filed any application for his re-examination.
(13.) Mr. Lala Kailash Bihari Prasad, Additional Public Prosecutor, however, appearing on behalf of the State submits that the learned Judge possessed unfettered power to summon any person as a witness or call and re-examine any witness, if it is of the opinion that evidence of such person is essential to the just decision of the case. In support of his submission, he ,has placed reliance on a judgment of the Supreme Court in the case of Anil Sharma and others v. State of Jharkhand (2004 (2) S. C. C. (Cri), 1706) : (2004 Cri LJ 2527) and our attention has been drawn to paragraph 12 of the judgment, which reads as follows :
"It is not that in every case where the witness who had given evidence before Court wants to change his mind and is prepared to speak differently, that the Court concerned should readily accede to such request by lending its assistance. If the witness who
deposed one way earlier comes before the appellate Court with a prayer that he is prepared to give evidence which is materially different from what he has given earlier at the trial with the reasons for the earlier lapse, the Court can consider the genuineness of the prayer in the context as to whether the party concerned had a fair op-, portunity to speak the truth earlier ancl in an appropriate case, accept it, It is not that the power is to be exercised in a routine or cavalier manner, but being an exception to the ordinary rule of disposal of appeal bn the basis of records received in exceptional cases or extraordinary situation the; Court' can neither feel powerless nor abdicate its duty to arrive at the truth and satisfy the ends of justice. The Court ultimately can certainly be guided by the metaphor, separate the grain from the chaff, and in a case; which has tell-tale imprint of reasonableness and genuineness in the prayer, the same has to be accepted, at least to con- sider the worth, credibility and the accept-' ability of the same on merits of the material sought to be brought in."
(14.) Our pointed attention has also been drawn to paragraphs 43 of the decision of the Supreme Court in the case of Zahira, Habibulla H. Sheikh and another v. State of Gujarat and others (2004 S. C. C. (Cri), 999) : (2004 Cri LJ 2050, Para 46), which reads as follows :
"The Courts have to take a participatory role in a trial. They are not expected to be tape recorders to record whatever is being stated by the witnesses. Section 311 of the. Code and Section 165 of the Evidence Act, confer vast and wide powers on presiding officers of Court to elicit all necessary ma- reterials by playing an active role in the evidence collecting process. They have to monitor the proceedings in aid of justice in a manner that something, which is not relevant, is not relevant, is not unnecessarily brought into record. Even if the prosecutor is remiss in some ways, it can control the proceedings effectively so that the ultimate objective i.e. truth is arrived at. This becomes more necessary where the Court has reasons to believe that the prosecuting agency or the prosecutor is not acting in the requisite manner. The Court cannot afford to be wishfully or pretend to be blissfully ignorant or oblivious to such serious pitfalls or dereliction of duty on the part of the prosecuting agency. The prosecutor who does not act fairly and acts more like a counsel for the defence is a liability to the fair judicial system, and Courts could not also play into the hands of such prosecuting agency showing indifference or adopting an attitude of total aloofness."
(15.) Having appreciated the rival submission, we do not find any substance in the submission of Mr. Prasad and the authorities relied on are clearly distinguishable.
(16.) It is well settled that Section 311 of the Code of Criminal Procedure confers power to the Court at any stage of trial to summon any person as a witness or recall and re-examine any person already examined, if his evidence appears to be essential for just decision of the case. It is equally well settled that power under Section 311 of the Code of Criminal Procedure cannot be exercised to fill up the lacuna in the case of prosecution. Although the Court possesses wide discretion but for exercise of the power, there has to be reason and material justifying the same, Here in the present case Rajendra Choudhary was examined as P.W. 8. Thereafter the mother of the victim lady was also examined as a Court witness. In our opinion there was no material before the trial Judge to come to the conclusion that re-examination of P. W. 8 is essential for the just decision of the case, excepting, perhaps his own belief that the appellants are the perpetrators of crime. It is widely accepted that the Court while trying a case cannot be a silent spectator and must play a participatory role but in our opinion it shall be dangerous to allow the trial Court to exercise its power on its belief which many time may not be true. Justice in accordance with law is our goal. On the day the learned Judge decided to re-examine Rajendra Choudhary there was no application either by him or by the prosecution. He has been examined as if he is a fresh witness. This witness having already been examined as P. W. 8, his evidence on re-examination if permissible should have been in continuity as P. W. 8 itself. We are constrained to observe that the learned Judge has passed the order of recall and recorded the evidence of P. W. 8 later on as C. W. 2, in a most cavalier manner without any justification. The authorities of the Supreme Court in the case of Anil Sharrna (2004 Cri LJ 2527) (supra), and Zahira Habibullah H. Sheikh (2004 Cri LJ 2050) (supra), relied on by Mr. Prasad in no way help the case of prosecution. In Anil Sharma (supra), the Supreme Court had examined the scope of Section 311 of the Code of Criminal Procedure in appeal and in Zahira (supra), the role which the trial Court should play under the aforesaid provision, when it believes that the trial is not being conducted in a fair manner. But the Supreme Court itself has given a word of caution that this power cannot be exercised in routine or cavalier manner.
(17.) Even we assume in favour of the prosecution that the learned Judge rightly exercised the power under Section 311 of the Code of Criminal Procedure, we find it very difficult to sustain the conviction of the appellants. The informant while being re-examined as P. W. 8 had stated that his daughter died of cold and diarrhoea. In the cross-examination he had admitted that they were informed about her death. Further the mother of the victim lady while being examined as a Court witness had also stated that her daughter died of diarrhoea and family members from the matrimonial side had informed them about her death and in fact she along with her husband had gone to her matrimonial home. She had also stated that neither the husband of the deceased nor his family members ever demanded any dowry. The evidence of Rajendra Choudhary recorded later on is in sharp contradiction to his own evidence earlier, that of his wife Puniya Devi as also host of other witnesses (P.W. 1 to P. W. 7) examined by the prosecution, who have consistently stated that deceased died of cold and diarrhoea and her parents attended the funeral. Even as Court-witness No.2 Rajendra Choudhary had not stated that the father-in-law and mother-in-law made any demand of dowery. In such State of evidence, we are of the opinion that it shall be highly unsafe to sustain the conviction of the appellants.
(18.) Accordingly, this appeal is allowed, impugned judgment of conviction and sentence is set aside. Appellant No. 1 Surendra Choudhary and appellant No.2 Ram Jatan Choudhary are in custody. Jhey be released forthwith, unless required in any other case. Appellant No. 3 Deo Rani Devi @ Bardahi Devi is on bail. She shall be discharged of her bail bonds. Appeal allowed