JUDGMENT A.C. Upadhyay, J. 1. Accused-Appellant Manik Sarkar was put on trial for commission of offence under Section 498-A/302, IPC. The Appellant was convicted by the learned Additional Sessions Judge, West Tripura, Khowai, under Sections 498-A and 302 of IPC and he was sentenced to suffer R.I. for life and to pay a fine of Rs. 1000/- in default to suffer R.I. for one month. 2. Facts leading to filing of this appeal may be stated in brief as follows: 3. Tulsi Sarkar, daughter of the informant Smti. Sati Rani Sarkar (PW-1) was given in marriage with the accused Appellant Manik Sarkar about two years before the date of occurrence. After a few months of their marriage accused-Appellant started tormenting his wife Tulsi. Tulsi used to narrate her tale of sorrows as and when she visited her parents. Tulsi also confided to her parents about intimidation and threat given by the accused Appellant. The parents of Tulsi consoled her by giving assurances that the accused-Appellant would not do such things in future. In the mean time accused-Appellant rented a house at reserved forest locality at Joynagar and started residing with Tulsi. Even after shifting of the residence, accused-Appellant continued to torture Tulsi. 4. On the date of occurrence i.e. on 25.07.1998, when Tulsi was preparing to go to a nearby house for reading 'Manasha book'. Accused-Appellant forbade her from going out of the residence. On the issue of going out from the house for reading 'Manasha book' an altercation ensued between the accused-Appellant and the deceased. At that time the accused-Appellant kicked eight months old pregnant Tulsi on her abdomen. On being so hit by the accused-Appellant, Tulsi fell down on the ground. Accused-Appellant Manik Sarkar then poured kerosene oil on her body and set her on fire. Severely injured Tulsi was rescued by the neighbourers with burn injuries and she was immediately shifted to the local hospital by the villagers and her mother-in-law. Immediately, thereafter, parents of Tulsi Sarkar rushed to the Teliamura Hospital, where she was admitted for treatment. Parents found Tulsi in injured condition. The medical officer present in Teliamura Hospital advised shifting of Tulsi to G.B. Hospital, Agartala immediately for treatment. Accordingly, Shri Hari Sarkar (PW-2) by hiring a vehicle carried Tulsi to G.B. Hospital at Agartala. Tulsi, finally, succumbed to her injuries in the hospital after 13 days from the date of occurrence. 5. Smti. Parents found Tulsi in injured condition. The medical officer present in Teliamura Hospital advised shifting of Tulsi to G.B. Hospital, Agartala immediately for treatment. Accordingly, Shri Hari Sarkar (PW-2) by hiring a vehicle carried Tulsi to G.B. Hospital at Agartala. Tulsi, finally, succumbed to her injuries in the hospital after 13 days from the date of occurrence. 5. Smti. Sati Rani Sarkar (PW-1), mother of victim Tulsi lodged a written 'Ejahar' before the Officer-in-Charge of Teliamura Police Station on the date of the incident. On the basis of the said 'Ejahar', the Officer-in-Charge of Teliamura Police Station registered a case under Section 498-A, 302 of IPC and launched investigation. During investigation the Investigating Officer recorded the testimony of the witnesses and also recorded statement of the victim Tulsi under Section 161 Code of Criminal Procedure before her death. On completion of the investigation, the investigating police officer submitted charge-sheet for the alleged commission of Offence under Section 498-A/302 of IPC against the accused-Appellant. The offence alleged against the accused-Appellant, being exclusively triable by the Court of Sessions, the learned SDJM, Khowai committed the case to the Sessions Court for trial. 6. During trial, the learned Sessions Judge framed formal charge under Section 498-A and 302 of IPC against the accused-Appellant. On reading over and explaining the charge aforesaid, the accused-Appellant pleaded not guilty and claimed to be tried. The prosecution, in order to bring home the charges levelled against the accused-Appellant adduced the testimony of 14 prosecution witnesses. Apart from the oral evidence of the witnesses, prosecution side also proved the FIR, hand-sketched map, inquest report, seized articles, dying declaration of victim Tulsi Sarkar, recorded by the Tripura Commission for Women etc. On completion of the evidence of the prosecution witnesses, the learned trial Court recorded the statement of the accused under Section313, Code of Criminal Procedure The accused-Appellant in his statement under Section 313, Code of Criminal Procedure took the stand of total denial and declined to adduce any evidence. 7. On the basis of the evidence on record, the learned trial Court convicted and sentenced the accused-Appellant as aforesaid giving rise to this appeal. 8. 7. On the basis of the evidence on record, the learned trial Court convicted and sentenced the accused-Appellant as aforesaid giving rise to this appeal. 8. Learned Counsel for the accused-Appellant submitted that the learned trial Court failed to apply its judicial mind to decipher and reject the concocted story framed by the police and further contended that there is virtually no evidence to convict the accused-Appellant for the commission of crime alleged against him. Learned Counsel for the accused-Appellant further pointed out that the oral dying declaration of the deceased which was not recorded by any Magistrate is not admissible in law and further submitted that the statement of the victim recorded by the I.O. under Section 161, Code of Criminal Procedure during investigation is not admissible in evidence. Learned Counsel for the accused-Appellant further pointed out that the prosecution miserably failed to prove the cause of death of the deceased as the post mortem report, which is vital piece of evidence was not proved by the Doctor, who carried out the post mortem examination. Learned Counsel for the accused-Appellant further submitted that the dying declaration made by the deceased cannot be taken into consideration since no medical report is available on the record to hold that the deceased was physically and mentally fit to give her dying declaration. 9. On the other hand, learned Public Prosecutor appearing on behalf of the State-Respondent vehemently submitted that the dying declaration, which is corroborated by all the witnesses present beside the deceased when it was made by her cannot be ignored. Learned Public Prosecutor further pointed out that the deceased lived for 13 long days from the date of occurrence, therefore, the question raised by the accused-Appellant regarding the poor state of health is not acceptable as because, had she been having a very poor state of health, she would not have survived for 13 long days, which has been affirmed by the doctor. He further submitted that the accused-Appellant did not challenge the death of the deceased or identity of the deceased during the trial. 10. In order to appreciate the argument advanced by the learned Counsel for the accused-Appellant as well as learned Public Prosecutor representing the State-Respondent, we consider it to be appropriate to scan through the core of the evidence laid by the prosecution. 11. P.W.I, Smti. 10. In order to appreciate the argument advanced by the learned Counsel for the accused-Appellant as well as learned Public Prosecutor representing the State-Respondent, we consider it to be appropriate to scan through the core of the evidence laid by the prosecution. 11. P.W.I, Smti. Sati Rani Sarkar, informant as well as the mother of victim Tulsi deposed that the marriage of her daughter Tulsi with accused-Appellant Manik Sarkar was solemnized about five years before the date of occurrence. However, immediately after few months from the date of marriage accused-Appellant started torturing her daughter and such incident of torture was narrated by the victim Tulsi as and when she used to visit her parents. However, P.W.I used to console her and on some occasions also paid money to her daughter. On the date of incident, P.W.I came to learn from the villagers that her daughter Tulsi was admitted in hospital after having been set on fire by the accused- Appellant. Immediately after getting the news, she rushed to Teliamura Hospital, from where her daughter was immediately shifted to G B. Hospital, for better treatment. P.W.I stated in her deposition that her daughter Tulsi told her at G.B. Hospital that her husband had poured kerosene oil on her and set her on fire. P.W.I proved the FIR and her signature thereon. She also stated that after struggling with life for long 13 days in the hospital, Tulsi succumbed to her injuries. In her cross-examination, P.W. 1 clarified that her daughter started speaking after two days from her admission and after two days of her admission she told P.W.1 in G.B. Hospital that she was set on fire by her husband Manik Sarkar. 12. P.W. 2, Hari Sarkar, father of Tulsi, corroborating the testimony of P.W.I stated that after a few months from the marriage, accused-Appellant started torturing his daughter Tulsi which increased after the birth of a female child. On the date of occurrence, at about 7 p.m. Pratima Sarkar (PW-7), sister of accused Manik Sarkar came and informed the P.W.2 in the market that the accused-Appellant had fled away after setting his daughter Tulsi on fire and her daughter had been shifted to hospital. On getting such information, the P.W.2 rushed to Teliamura Hospital where the attending medical officer referred Tulsi to G.B. Hospital, Agartala immediately. P.W.2 hired a jeep and carried Tulsi to G.B. Hospital, Agartala. On getting such information, the P.W.2 rushed to Teliamura Hospital where the attending medical officer referred Tulsi to G.B. Hospital, Agartala immediately. P.W.2 hired a jeep and carried Tulsi to G.B. Hospital, Agartala. According to P.W.2, on the following day of her admission, Tulsi told him mat while she was sleeping in her room, accused-Appellant, Manik Sarkar poured kerosene oil on her and when Tulsi was trying to free her from the clutch of accused-Appellant, accused-Appellant Manik Sarkar felled her on the ground by inflicting her a kick on her abdomen and set her on fire by pouring kerosene oil. 13. Evidence of P.W.s 3 and 4 reveal that the police immediately after the occurrence seized a burnt 'saree' with a container containing kerosene oil and match box by preparing a seizure memo from the place of occurrence. The witnesses also affirmed the death of Tulsi due to burn injuries sustained by her in the incident. 14. P.W.6, Ahmed Ali confirmed the death of Tulsi due to burn injuries. P.W.6, Ahmed Ali was neighbour of the accused Appellant came to the house of Jahar Saha after hearing hue and cry, where accused Appellant used to reside with his wife as tenant. On finding Tulsi in an injured condition she was removed to Teliamura Hospital with the help of the co-villagers. 15. P.W.s 7 & 8 are the brothers of accused Appellant, who were declared hostile by the prosecution. 16. P.W.9, Smti. Ratna Saha is a neighbour of the accused Appellant. According to P.W.9, on hearing hue and cry she rushed to the place of occurrence and found Tulsi blazing and naked. The villagers extinguished the fire and she covered her body by a cloth. In her cross-examination P.W.9 stated that Tulsi was standing and she was speechless. 17. P.W.10, Ranjan Sarkar, brother of Tulsi corroborated the testimony of P.Ws. 1 & 2 and further stated that on his query Tulsi had told him in the hospital that the Appellant accused Manik Sarkar assaulted her and fell her on the ground by inflicting a kick on her abdomen and set her on fire after pouring kerosene oil upon her body. P.W.10 stated that his sister Tulsi died in the hospital after 13 days from the date of her admission in the hospital. 18. P.W.13, Smti. P.W.10 stated that his sister Tulsi died in the hospital after 13 days from the date of her admission in the hospital. 18. P.W.13, Smti. Dipa Saha, who was in Tripura Manila Commission as P. A. to the Member Secretary and stated in her deposition that Tripura Manila Commission received a written complaint from the mother of Tulsi Sarkar to the effect that her daughter was set on fire by her husband and upon getting such information Chairperson of Tripura Mahila Commission directed two members of the Commission namely Smti. Indu Bala Das and Smti. Gouri Das to visit G B. Hospital to enquire into the matter. Accordingly, Smti. Indu Bala Das and Smti. Gouri Das visited G.B. Hospital, met the victim and recorded the statement of the victim. The statement of victim Tulsi so recorded by them was later on seized by the police. 19. P.W.14, Smti. Gouri Das, Counsellor of Tripura Women Commission in her deposition confirmed having received a written complaint on 27.07.1998 from Smti. Sati Rani Sarkar, stating therein that her daughter Tulsi Sarkar was set on fire by her husband and consequent admission in G B. Hospital at Agartala for treatment. P.W. 14 further stated that on receipt of the said letter Smti. Manjulika Basu, Chairperson of the Tripura Women Commission directed her and Smti Indu Bala Das to visit G.B. Hospital in order to enquire into the matter. P.W.14 also confirmed that Indu Bala Das, Member of Tripura Women Commission with the permission of the duty nurse put question to the victim Tulsi in presence of the said duty nurse and the witness reduced the statement of Tulsi into writing as per direction of Smti. Indu Bala Das. After recording the statement of Tulsi, Tulsi also put her LTI on the statement. P.W. 14 also proved the statement of Tulsi Sarkar, Exbt. 12/1, recorded by her. After recording the statement of victim Tulsi, P.W. 14 put her signature as a writer and asked the victim whether she was in a position to put her signature. In reply the victim told her that she will put her thumb impression. Accordingly, P.W. 14 took left thumb impression of the victim Tulsi on the statement recorded by her. P.W. 14 also proved the endorsement in the LTI and also the complaint received by the Tripura Women Commission from the mother of the victim. In reply the victim told her that she will put her thumb impression. Accordingly, P.W. 14 took left thumb impression of the victim Tulsi on the statement recorded by her. P.W. 14 also proved the endorsement in the LTI and also the complaint received by the Tripura Women Commission from the mother of the victim. The dying declaration recorded by P.W. 14 reads as follows: I am Smti. Tulsi Sarkar W/o. Manik Sarkar, Vill-Joynagar, near Block office, P.S. Teliamura. About two and half years back we had married at our own choice. My husband is a day labourer and a rickshaw puller. Since after the marriage my husband started torturing upon me physically. In an intoxicated condition he used to tell me very often/daily that he will set fire on my person. Lastly, 25th July, on Saturday at twilight by consuming liquor he had set fire (on my person) by way of pouring kerosene oil. Then I was pregnant. After coming at Hospital I gave birth of a dead male child. My father-in-law and mother-in-law never mis-behave with me. Both of them loved me. My father -in-law and mother-in-law used to live in a separate house. Before it I have a female child of one and half years. On hearing my cry due to fire set on my person the neighbouring people came over here and they had admitted me in Teliamura hospital in burnt condition. Then and there I was sent to G.B. hospital from over there. 20. N. Das, P.W. 12, who was the investigating officer of this case stated in his deposition that on 25.07.1998 he took up the investigation of the case and visited the place of occurrence but found that the accused had absconded from his house. P.W. 12 also recorded the statement of Tulsi Sarkar, Exbt.9, in the hospital and seized the dying declaration of Tulsi Sarkar recorded by Smti. Gouri Das from the office of Tripura Women Commission. On completion of the investigation P.W 12 submitted the charge-sheet against the accused-Appellant. 21. In the midst of the arguments learned P.P., Tripura pointed out that during trial, inadvertently the post-mortem report of the victim was not brought on record by examining the doctor who carried out the post-mortem examination of the deceased. On completion of the investigation P.W 12 submitted the charge-sheet against the accused-Appellant. 21. In the midst of the arguments learned P.P., Tripura pointed out that during trial, inadvertently the post-mortem report of the victim was not brought on record by examining the doctor who carried out the post-mortem examination of the deceased. We have meticulously scanned the trial Court record and to our utter disgust, we find that the Doctor who had carried out the postmortem examination of the deceased was never ever summoned to appear before the Court to prove his report. As a matter of fact to bring on record post mortem report of the deceased was equally important for the accused, the prosecution, and the trial Court as well, to arrive at just decision. However, apparently, it did not occur in the mind of any of the above. We find there was no reason to ignore and conveniently forget to bring the post-mortem report on record by calling the doctor, who carried out the postmortem examination of the victim. 22. Careful examination oft he record of the trial Court reflects dismal failure of the prosecution as well as the learned trial Court in taking suitable steps at appropriate time to get rid of the predicament, which had all the potential to prejudice either of the parties. The above sordid state of affairs reminds us of the touching reflections in the decision of the Apex Court in Zahira Habibulla H. Sheikh and Anr. v. State of Gujarat and Ors. 2004 CriLJ 2050, which is quoted below: When the investigating agency helps the accused, the witnesses are threatened to depose falsely and the prosecutor acts in a manner as if he was defending the accused, and the Court was acting merely as an onlooker and when there is no fair trial at all, justice becomes the victim. 23. The Apex Court in Zahira Habibullah Sheikh v. State of Gujarat (2006) 3 SCC 374 , re-emphasizing the duty of the Courts in criminal trial observed that fair trial for a criminal offence consists not only in technical observance of the frame, and forms of law, but also in recognition and just application of its principles in substance, to find out the truth and prevent miscarriage of justice. We could resist our temptation to depict the relevant extract of the above decision, which succinctly laid the law as follows: 22. We could resist our temptation to depict the relevant extract of the above decision, which succinctly laid the law as follows: 22. The complex pattern of life which is never static requires a fresher outlook and a timely and vigorous moulding of old precepts to some new conditions, ideas and ideals. If the Court acts contrary to the role it is expected to play, it will be destruction of the fundamental edifice on which the justice delivery system stands. People for whose benefit the Courts exist shall start doubting the efficacy of the system. "Justice must be rooted in confidence; and confidence is destroyed when right-minded people go away thinking: 'The Judge was biased.' "(Per Lord Denning, M. R. in Metropolitan Properties Co. Ltd. v. Lannon, All ER P. 310A.) The reception may be wrong about the Judge's bias, but the Judge concerned must be careful to see that no such impression gains ground. Judges like Caesar's wife should be above suspicion (Per Bowen, L.J. in Leeson v. General Council of Medical Education.) 23. By not acting in the expected manner a Judge exposes himself to unnecessary criticism. At the same time the Judge is not to be innovative at pleasure. He is not a knight errant roaming at will in pursuit of his own ideal of beauty or of goodness, as observed by Cardozo in The Nature of Judicial Process. 24. It was significantly said that law, to be just and fair has to be seen devoid of flaw. It has to keep the promise to justice and it cannot stay petrified and sit nonchalantly. 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 (see Jennison v. Baker). Increasingly, people are believing as observed by Salmon quoted by Diogenes Laertius in Lives of the Philosophers, "Laws are like spiders' webs: if some light or powerless thing falls into them, it is caught, but a bigger one can break through and get away." Jonathan Swift, in his "Essay on the Faculties of the Mind" said in similar lines: "Laws are like cobwebs, which may catch small flies, but let wasps and hornets break through." 27. The object underlying Section 311 of the Code is that there may not be failure of justice on account of mistake of either party in bringing the valuable evidence on record or leaving ambiguity in the statements of the witnesses examined from either side. The determinative factor is whether it is essential to the just decision of the case. The section is not limited only for the benefit of the accused, and it will not be an improper exercise of the powers of the Court to summon a witness under the section merely because the evidence supports the case of the prosecution and not that of the accused. The section is a general section which applies to all proceedings, enquiries and trials under the code and empowers the Magistrate to issue summons to any witness at any stage of such proceedings, trial or enquiry. In Section 311 the significant expression that occurs is "at any stage of any inquiry or trial or other proceeding under this Code". It is, however, to be borne in mind that whereas the section confers a very wide power on the Court on summoning witnesses, the discretion conferred is to be exercised judiciously, as the wider the power the greater is the necessity for application of judicial mind. 28. As indicated above, the section is wholly discretionary. The second part of it imposes upon the Magistrate an obligation: it is, that the Court shall summon and examine all persons whose evidence appears to be essential to the just decision of the case. It is a cardinal rule in the law of evidence that the best available evidence should be brought before the Court. Sections 60, 64 and 91 of the Evidence Act, 1872 (in short "the Evidence Act") are based on this rule. The Court is not empowered under the provisions of the Code to compel either the prosecution or the defence to examine any particular witness or witnesses on their side. This must be left to the parties. But in weighing the evidence, the Court can take note of the fact that the best available evidence has not been given, and can draw an adverse inference. The Court will often have to depend on intercepted allegations made by the parties, or on inconclusive inference from facts elicited in the evidence. This must be left to the parties. But in weighing the evidence, the Court can take note of the fact that the best available evidence has not been given, and can draw an adverse inference. The Court will often have to depend on intercepted allegations made by the parties, or on inconclusive inference from facts elicited in the evidence. In such cases, the Court has to act under the second part of the section. Sometimes the examination of witnesses as directed by the Court may result in what is thought to be "filling of loopholes". That is purely a subsidiary factor and cannot be taken into account. Whether the new evidence is essential or not must of course depend on the facts of each case, and has to be determined by the Presiding Judge. 29. The object of Section 311 is to bring on record evidence not only from the point of view of the accused and the prosecution but also from the point of view of the orderly society. If a witness called by the Court gives evidence against the complainant, he should be allowed an opportunity to cross-examine. The right to cross-examine a witness who is called by a Court arises not under the provisions of Section 311, but under the Evidence Act which gives a party the right to cross-examine a witness who is not his own witness. Since a witness summoned by the Court could not be termed a witness of any particular party, the Court should give the right of cross-examination to the complainant. These aspects were highlighted in Jamatraj Kewalji Govani v. State of Maharashtra. 30. Right from the inception of the judicial system it has been accepted that discovery, vindication and establishment of truth are the main purposes underlying the existence of the Courts of justice. The operative principles for a fair trial permeate the common law in both civil and criminal contexts. Application of these principles involves a delicate judicial balancing of competing interests in a criminal trial: the interests of the accused and the public and to a great extent that of the victim have to be weighed not losing sight of the public interest involved in the prosecution of persons who commit offences. 24. Application of these principles involves a delicate judicial balancing of competing interests in a criminal trial: the interests of the accused and the public and to a great extent that of the victim have to be weighed not losing sight of the public interest involved in the prosecution of persons who commit offences. 24. Though justice is portrayed to be blindfolded, as popularly said, it is only a veil not to see who the party before it while pronouncing judgment on the cause brought before it by implementing law and administering justice and not to disregard or turn the attention of the Court away from the truth of the cause or lis before it, in disregard of its duty to prevent miscarriage of justice. Any indifference, inaction or lethargy shown in protecting right guaranteed in law will tend to paralyse and erode in stages the faith inbuilt in the judicial system, ultimately destroying the very justice-delivery system of our country itself. Doing justice is the supreme concern and that duty cannot be renounced or diluted and diverted. 25. The Court exist for doing justice to the persons who are affected. The trial/first appellate Courts cannot get swayed by abstract technicalities and close their eyes to factors which need to be positively probed and noticed. The Court is not merely to act as tape recorder recording evidence, overlooking the object of trial i.e. to get at the truth. It cannot be oblivious to the active role to be played for which there is not only ample scope, but sufficient powers conferred under the Code. It has a greater duty and responsibility to render justice, in a case, where the role of the prosecuting agency making a mockery of the criminal justice administration. 26. Next question which arises for consideration and decision of this Court is whether in order to remove the confusion and to enable the appellate Court to appreciate the evidence on record the case can be sent back to the trial Court for recording the testimony of the Doctor, to prove the post mortem examination report vis--vis injury sustained by the deceased. We feel, there is reason for this Court to act as onlookers, not to let the justice become the victim. We feel, there is reason for this Court to act as onlookers, not to let the justice become the victim. The ratio of the decision in Zahira Habibullah Sheikh (5) (supra) impels us to hold that such a direction as noted above, thus, can be issued where there had been complete failure of justice and where the investigating and prosecuting agencies were found to have not performed their role in the manner it was expected to do. 27. As a matter of fact lapse of time cannot bar this Court from directing to record additional evidence for just decision of the case when such necessity has been established. Section 391 of Code of Criminal Procedure empowers this Court to issue direction to record additional evidence for the ends of justice when it is seen that examination of the Dr. P. Das, who carried out the post mortem examination is essential for the ends of justice. It would also be open to the learned trial Judge, in case of impossibility to examine the Dr. Piyus Das to prove the post mortem report of the victim by any other doctor who is acquainted with his writings. 28. Having regard to the facts and circumstances discussed above, we remit this case to the Court of learned Additional Sessions Judge, Khowai, West Tripura with a direction to examine the concerned doctor and to prove the postmortem examination of the victim, in order to clarify the facts discussed above. However, it is further directed that the learned Additional Sessions Judge, West Tripura, Khowai shall afford adequate opportunity to both the prosecution as well as Appellant's counsel to cross-examine the doctor after recording his testimony in the Court. The learned Additional Sessions Judge, West Tripura, Khowai, is also directed to complete the above exercise within a period of 2 (two) months from the date of receipt of the L.C.R. Learned Additional Sessions Judge, Khowai, West Tripura shall send back the record of examination of the doctor to this Court immediately, after completion of the process. 29. However, any opinion which we may have expressed unwittingly on the question of facts in this order, would not bind or affect the learned Additional Sessions Judge, Khowai, West Tripura while recording the testimony of the Doctor, who carried out the postmortem examination of the deceased. 30. 29. However, any opinion which we may have expressed unwittingly on the question of facts in this order, would not bind or affect the learned Additional Sessions Judge, Khowai, West Tripura while recording the testimony of the Doctor, who carried out the postmortem examination of the deceased. 30. The Registry is directed to send the L.C.R. of this case to the Court of Additional Sessions Judge, West Tripura, Khowai, immediately, together with a copy of this order.