Banerjee & Ors Vs. State of West Bengal & Ors  Insc 711 (23 November 2004)
Y K. SABHARWAL & D.M. DHARMADHIKARI (@ 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 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
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 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 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
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 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
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
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.
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
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.