Judgment Shree Chandrashekhar, J. 1. The sole appellant has preferred this criminal appeal against the judgment of conviction and order of sentence dated 13.02.2002/14.02.2002 in Sessions Case No. 119 of 1987/369 of 2001 passed by the Sessions Judge, Jamtara. The appellant has been convicted for an offence under Section 302 I.P.C. and he has been found guilty for the alternate charge under Section 304(B) I.P.C. also. The appellant has been sentenced to undergo rigorous imprisonment for life. The charge for the offence under Section 4 of Dowry Prohibition Act has failed and the appellant has been acquitted of the said charge. 2. The prosecution case as disclosed in the fardbeyan of Lakshmi Narain Tiwary, who is the father of the deceased, is that his daughter Veena Devi was married to the accused Anil Tiwary in the year 1983. His daughter was blessed with a daughter about four months prior to the incident. On 18.02.1987, he had gone to the house of his daughter at village Kamaldih where in the night his daughter informed him that she was harassed for demand of dowry. He persuaded his daughter to stay there and came back on 19.02.1987. He used to plead with his soninlaw with folded hands that he is not capable of giving any dowry. On 21.02.1987, he heard a rumour that his daughter has been grievously injured in the previous night by her husband Anil Tiwary. He, on receiving such information proceeded to Kamaldih with his cousin, Surendra Nath Tiwary. They enquired about the incident from the villagers of the Kamaldih, who informed that at about 11.30 p.m. in the previous night, Anil Tiwary raised a hulla of “ChorChor”, however, when the villagers went to his house they did not find any sign of theft there. The villagers informed him that Anil Tiwary told them that her wife was assaulted by the thieves. He has further stated that the villagers informed him that they called the doctor and carried his daughter to Narainpur hospital. He, therefore, suspected that his soninlaw has killed his daughter for dowry. 3. On the basis of the fardbeyan of Lakshmi Narain Tiwary, the first information report being Narainpur P. S. Case No. 11 of 1987 was registered against the appellant Anil Tiwary. After the investigation, chargesheet was filed and cognizance of the offence was taken. He, therefore, suspected that his soninlaw has killed his daughter for dowry. 3. On the basis of the fardbeyan of Lakshmi Narain Tiwary, the first information report being Narainpur P. S. Case No. 11 of 1987 was registered against the appellant Anil Tiwary. After the investigation, chargesheet was filed and cognizance of the offence was taken. Charges under Section 302 and alternatively under Section 304(B) I.P.C. and also under Section 4 of Dowry Prohibition Act were framed against the appellant. During the trial, the prosecution examined 10 witnesses and the fardbeyan of the informant, formal F.I.R, seizure list dated 21.02.1987 and seizure list dated 22.02.1987 were exhibited on behalf of the prosecution. Learned trial judge found the appellant guilty for the offence under Section 302 as well as under Section 304(B) I.P.C. and sentenced him to undergo R.I. for life. The learned trial judge held that nonexamination of the Investigating Officer and the Doctor, who held postmortem examination over the deadbody, has not caused any prejudice to the accused and the prosecution has been able to prove its case which is based on circumstantial evidence. 4. Heard counsel for the parties and perused the documents on record. 5. Learned counsel for the appellant has submitted that there is no eyewitness to the occurrence. The prosecution case is based on circumstantial evidences however, the chain of circumstances is not complete and there are several infirmities in the circumstances relied upon by the prosecution. The deposition of the witnesses suffers from contradictions, omissions, inconsistency, exaggeration and embellishments and merely on the basis of suspicion, the appellant has been convicted. 6. On the other hand, learned A.P.P. appearing for the State has supported the judgment of conviction and order of sentence passed against the appellant. 7. The prosecution has examined the informant Lakshmi Narain Tiwary as P.W 3, who has stated in the Court that his daughter was married to accused Anil Tiwary in the year 1983. The occurrence is of the year 1987. The informant received a message in the morning at about 7 a.m. that his daughter has been killed. On receiving such information, he along with his cousin Surendra Nath Tiwary went to Kamaldih village where his daughter was married. He went to the house of his soninlaw where he found blood on the earth and the cot. The informant received a message in the morning at about 7 a.m. that his daughter has been killed. On receiving such information, he along with his cousin Surendra Nath Tiwary went to Kamaldih village where his daughter was married. He went to the house of his soninlaw where he found blood on the earth and the cot. The villagers informed him that in the previous night Anil Tiwary had raised an alarm 'chor – chor' however, they did not find thief or any sign of theft. He has further stated that the villagers informed him that his soninlaw had killed his daughter. He again went inside the house of his soninlaw where he did not find broken or scattered articles. His soninlaw was not at house. Thereafter, he went to the hospital at Narainpur where he saw the deadbody of his daughter. He found three cutmarks by sword on the neck of his daughter. When he asked his soninlaw regarding the incident, he could not give any satisfactory answer. He has further stated that his soninlaw used to demand motorcycle and radio from him and his soninlaw used to complain to him that boys less literate than him were given dowry of Rs. 31,001/. He has stated that his daughter also used to complain to him that her husband had been demanding dowry and in this connection he used to beat her and issued threats to her that he would marry again with another girl. He has deposed in the court that he had gone to Narainpur Police Station where the Daroga Ji recorded his statement, on the basis of which the case was registered. He has identified his signature on the fardbeyan which has been marked as Ext. 1. 8. During the crossexamination, P.W 3 has admitted that after the marriage of his daughter, he used to visit Kamaldih every month. He has stated that a messenger was sent to him from the house of his sister, who is also married in the same village however, he would not reveal the name of the said messenger. He said that the messenger had given information to him at about 5 a.m. in the morning. He has stated that a messenger was sent to him from the house of his sister, who is also married in the same village however, he would not reveal the name of the said messenger. He said that the messenger had given information to him at about 5 a.m. in the morning. He has admitted in the court that after the marriage, his daughter and his son-in-law used to visit his house regularly and he has not made any oral or written complaint regarding demand of dowry or torture to her daughter by the accused. He has also stated in the court that in the night of 18th, that is, two days prior to the incident, his daughter had complained that her husband had assaulted her. He denied the suggestion that his son-in-law had taken his daughter to the hospital. He has also denied the suggestion that in the year 1986, he had proposed the marriage of his another daughter namely, Pratima with the younger brother of his son-in-law, to which his son-in-law had objected. 9. The prosecution has examined Rajendra Prasad Tiwary as P.W 1, who claimed that he and the complainant Lakshmi Narain Tiwary are residing in the same campus. He is related to the complainant. In so far as the factum of marriage of the deceased with the appellant is concerned, he has supported the case of the prosecution. He has stated that when he received the information that Veena is injured, he also went to Kamaldih. He did not see the deadbody of the deceased. In so far as the demand of dowry is concerned he has stated that Veena (deceased) had informed him that her husband used to demand radio and motorcycle. In the crossexamination, he has stated that he cannot say the name of the person, who gave the information that Veena has been injured. He has admitted in the crossexamination that when Veena informed him about the demand of dowry, he did not discuss the matter with anyone including the father of the appellant. 10. Indradeo Mishra has been examined as P.W 2. He is 'mama' of the father of the deceased. On receiving the information, he reached the hospital and he had seen the deadbody of the deceased. He has not spoken anything about the demand of dowry or the murder of the deceased. 11. 10. Indradeo Mishra has been examined as P.W 2. He is 'mama' of the father of the deceased. On receiving the information, he reached the hospital and he had seen the deadbody of the deceased. He has not spoken anything about the demand of dowry or the murder of the deceased. 11. P.W 4, P.W 8 and P.W 9 have been examined by the prosecution as seizure list witnesses. P.W 4 has stated that nothing was seized in his presence and he signed the seizure list because Daroga ji had asked him to sign. P.W 8 has deposed that he had signed the seizure list as instructed by the Daroga Ji. He has admitted in the crossexamination that the accused Anil Tiwary had brought the Doctor from Narainpur and when the Doctor advised to take the injured to the hospital, accused Anil Tiwary had taken her wife to the Government hospital at Narainpur. P.W 9 has denied that sword or anything was recovered from the house of the accused Anil Tiwary in his presence. The Daroga Ji had taken his endorsement on a blank paper and he had forced him to sign the same. 12. The wife of Surendra Nath Tiwary (P.W 7) namely, Geeta Devi has been examined as P.W 5. She has stated that Veena was killed. She has admitted in the crossexamination that she never saw the appellant quarreling with the deceased. She has stated that about two months prior to her death, Veena had informed her that her husband had a quarrel with her regarding radio and motorcycle. She has not stated that Anil Tiwary killed Veena Devi. 13. The mother of the deceased namely, Kanti Devi has been examined as P.W 6 by the prosecution. She has stated that whenever her daughter came to her house she used to inform her that her husband used to quarrel with her because radio and motorcycle was not given to him in dowry. She has not stated that accused Anil Tiwary had killed her daughter. 14. One cousin of the complainant namely, Surendra Nath Tiwary has been examined as P.W 7. He has stated that one boy informed him that Veena is unwell and therefore, he and Lakshmi Narain Tiwary, the complainant proceeded for Kamaldih on bicycle. She has not stated that accused Anil Tiwary had killed her daughter. 14. One cousin of the complainant namely, Surendra Nath Tiwary has been examined as P.W 7. He has stated that one boy informed him that Veena is unwell and therefore, he and Lakshmi Narain Tiwary, the complainant proceeded for Kamaldih on bicycle. He has further stated that on enquiry the villagers informed him that in the previous night Anil Tiwary had raised hulla 'dacoitdacoit', however, when they reached there they did not find any sign of dacoity. He has also stated that his brother had gone to the police station for giving information. With respect to the demand of dowry, he has stated that the deceased had informed him that Anil Tiwary used to ask for watch, radio and motorcycle. In the crossexamination he has admitted that his cousin (sister) is married to the son of Ganesh Tiwary in the same village. However, he did not ask anyone from the house of Ganesh Tiwary about the incident. 15. One Padma Lochan Ghosh, who has claimed himself to be an Advocate's Cleark, has been examined as P.W 10. He has proved the fardbeyan in the handwriting and signature of Sukhdeo Prasad, who was officerincharge of the Narainpur police station. He has also proved the handwriting and signature of Sukhdeo Prasad on F.I.R. and seizure list. And, he has proved the postmortem report in the handwriting and signature of the Doctor. 16. Learned counsel for the appellant has submitted that prosecution witnesses have stated in the court that several villagers had informed the complainant that his soninlaw had raised an alarm of 'Chor – Chor', but no one from the village has been examined by the prosecution. The complainant himself has admitted that though he knew the name of the person who came to give information that his daughter has been injured, but in crossexamination, he refused to disclose the name of that person. The complainant and other prosecution witnesses have also admitted in the court that the sister of the complainant is married to the son of one Ganesh Tiwary in the same village however, neither his sister nor the husband of his sister or anyone from the family of the said Ganesh Tiwary has been examined in the court. The complainant and other prosecution witnesses have also admitted in the court that the sister of the complainant is married to the son of one Ganesh Tiwary in the same village however, neither his sister nor the husband of his sister or anyone from the family of the said Ganesh Tiwary has been examined in the court. Learned counsel for the appellant has vehemently argued that the prosecution has suppressed the material witnesses who could have disclosed the truth and since the prosecution withheld such material witnesses, an adverse inference of unfair trial must be drawn and the benefit should be given to the accused. 17. The law regarding withholding of material witnesses was expounded by Jenkins, C.J., in the case of “Ram Ranjan Roy Vs. Emperor” reported in (1915) ILR 42 Cal 422 , which was considered by the Privy Council in the case of “Stephen Seneviratne Vs. The King” reported in AIR 1936 Privy Council 289 and it was affirmed by their Lordships that it is the duty of the prosecution to examine the material witnesses who could give an account of the narrative of the events on which the prosecution is essentially based. These decisions were considered by the Hon'ble Supreme Court in the case of “Habeeb Mohammad Vs. State of Hyderabad” reported in AIR 1954 SC 51 . The Hon'ble Supreme Court has observed as under, “In a long series of decisions the view taken in India was, as was expressed by Jenkins, C.J. in 'AIR 1915 Cal 545 (C)', that the purpose of a criminal trial is not to support at all costs a theory but to investigate the offence and to determine the guilt or innocence of the accused and the duty of a public prosecutor is to represent not the police but the Crown, and this duty should be discharged fairly and fearlessly with a full sense of responsibility attaching to his position and that he should in a Case place before the court the testimony of all the available eyewitnesses, though brought to the court by the defence and though they give different accounts, and that the rule is not a technical one, but founded on a common sense and humanity. This view so widely expressed was not fully accepted by their Lordships of the Privy Council in 'AIR 1936 PC 289 (B)', that came from Ceylon, but at the same time their Lordships affirmed the proposition that it was the duty of the prosecution to examine all material witnesses who could give an account of the narrative of the events on which the prosecution is essentially based and that the question depended on the circumstances of each case. In our opinion, the appellant was considerably prejudiced by the omission on the part of the prosecution to examine Biabani and the other officers in the circumstances of this case and his conviction merely based on the testimony of the police Jamedar, in the absence of Biabani and other witnesses admittedly present on the scene, cannot be said to have been arrived at after a fair trial, particularly when no satisfactory explanation has been given or even attempted for this omission.” 18. In the case of “Narain & Ors. Vs. State of Punjab”, reported in AIR 1959 SC 484 , the Hon'ble Supreme Court has held as under, 13. “....... It will be seen that the test whether a witness is material for the present purpose is not whether he would have given evidence in support of the defence. The test is whether he is a witness “essential to the unfolding of the narrative on which the prosecution is based”. Whether a witness is so essential or not would depend on whether he could speak to any part of the prosecution case or whether the evidence led disclosed that he was so situated that he would have been able to give evidence of the facts on which prosecution relied. It is not however that the prosecution is bound to call all witnesses who may have seen the occurrence and so duplicate the evidence. But apart from this, the prosecution should call all material witnesses”. 19. In the case of “State of U.P. & Anr. Vs. Jaggo @ Gagdish & Ors.” reported in 1971 (2) SCC 42 , the Hon'ble Supreme Court has held that the witnesses whose evidence is essential to the “unfolding of the narrative” should be called whether the effect of his testimony is for or against the case for the prosecution. The Hon'ble Supreme Court has held as under, 14. Vs. Jaggo @ Gagdish & Ors.” reported in 1971 (2) SCC 42 , the Hon'ble Supreme Court has held that the witnesses whose evidence is essential to the “unfolding of the narrative” should be called whether the effect of his testimony is for or against the case for the prosecution. The Hon'ble Supreme Court has held as under, 14. “Ramesh is the person with whom Lalu was talking at the time of the alleged occurrence. Ramesh was mentioned in the first information report. It is true that all the witnesses of the prosecution need not be called but it is important to notice that the witness whose evidence is essential to the “unfolding of the narrative” should be called. This salutary principle in criminal trials has been stressed by this Court in the case of “Habib Mohammad Vs. The State of Hyderabad” (supra) for eliciting the truth. The absence of Ramesh from the prosecution evidence seriously affects the truth of the prosecution case. 15. This court in Habeeb Mohammad's case (supra) referred to the observations of Jenkins, C.J., in Ram Ranjan Roy Vs. Emperor (supra) that the purpose of a criminal trial is not to support at all costs a theory but to investigate the offence and to determine the guilt or innocence of the accused and the duty of a public prosecutor is to represent the administration of justice so that the testimony of all the available eyewitnesses should be before the Court. Lord Roche in Stephen Senivaratne Vs. The King (supra) referred to the observations of Jenkins, C.J. and said that the witnesses essential to the unfolding of the narrative on which the prosecution is based must be called by the prosecution whether the effect of their testimony is for or against the case for the prosecution. That is why this Court in Habeeb Mohammad's case (supra) said that the absence of an eyewitness in the circumstances of the case might affect a fair trial. On behalf of the appellant it was said that Ramesh Chand was won over and therefore the prosecution could not call Ramesh. The High Court rightly said that the mere presentation of an application to the effect that a witness had been won over was not conclusive of the question that the witness had been won over. In such a case Ramesh could have been produced for crossexamination by the accused. The High Court rightly said that the mere presentation of an application to the effect that a witness had been won over was not conclusive of the question that the witness had been won over. In such a case Ramesh could have been produced for crossexamination by the accused. That would have elicited the correct facts. If Ramesh were an eyewitness the accused were entitled to test his evidence particularly when Lalu was alleged to be taking with Ramesh at the time of the occurrence.” 20. In the case of “Pratap Singh v. State of M.P.”, reported in (2005) 13 SCC 624 , the Hon’ble Supreme Court found that the High Court had committed an error in not drawing an adverse inference for nonexamination of Shivraj Singh and Moti Ram in the said case. The Hon’ble Supreme Court has observed that if during investigation name of two other witnesses who had witnessed the occurrence appeared, the Investigating Officer was duty bound to record their statement under Section 161 Cr.P.C 21. In the case of “Govindaraju v. State”, reported in (2012) 4 SCC 722 , the Hon’ble Supreme Court, while discussing the applicability of the principle of “adverse inference”, has held as under, 65. “The applicability of the principle of “adverse inference” presupposes that withholding was of such material witnesses who could have stated precisely and cogently the events as they occurred. Without their examination, there would remain a vacuum in the case of the prosecution. The doctor was a cited witness but was still not examined. The name of the Head Constable and the constable appears in the police investigation but still they were not examined. It is true that in their absence the postmortem report and the FSL report were exhibited and could be read in evidence. But still the lacuna in the case of the prosecution remains unexplained and the chain of events unconnected. For instance, the Head Constable could have described the events that occurred right from the place of occurrence to the death of the deceased. They could have well explained as to why it was not possible for one police officer, one Head Constable and one constable to apprehend all the accused or any of them immediately after the occurrence or even make enquiry about their names. They could have well explained as to why it was not possible for one police officer, one Head Constable and one constable to apprehend all the accused or any of them immediately after the occurrence or even make enquiry about their names. Similarly, the doctor could have explained whether inflicting of such injuries with the knife recovered was even possible or not. The expert from the FSL could have explained whether or not the weapons of offence contained human blood and, if so, of what blood group and whether the clothes of the deceased contained the same blood group as was on the weapons used in the commission of the crime. The uncertainties and unexplained matters of the FSL report could have been explained by the expert. There is no justification on record as to why these witnesses were not examined despite their availability.” 22. Learned counsel for the appellant has submitted that neither the Investigating Officer nor the doctor, who conducted postmortem examination over the deadbody of the deceased, have been examined by the prosecution and such nonexamination of the Investigating Officer and the doctor has caused serious prejudice to the appellant. It is the case of the prosecution that the appellant has given a confessional statement before the Investigation Officer, and at the instance of the appellant a blood stained sword has been recovered. However, the alleged confessional statement of the accused has not been brought on record. The blood stained sword which allegedly was recovered at the instance of the appellant has also not been produced in the court and thus, the recovery has not been proved by the prosecution and it cannot be used against the appellant. 23. The Hon'ble Supreme Court in the case of “Madhu v. State of Kerala”, reported in (2012) 2 SCC 399 , has explained the rationale behind Section 27 of the Evidence Act and held as under, 49. “As an exception, Section 27 of the Evidence Act provides that a confessional statement made to a police officer or while an accused is in police custody, can be proved against him, if the same leads to the discovery of an unknown fact. The rationale of Sections 25 and 26 of the Evidence Act is, that police may procure a confession by coercion or threat. The rationale of Sections 25 and 26 of the Evidence Act is, that police may procure a confession by coercion or threat. The exception postulated under Section 27 of the Evidence Act is applicable only if the confessional statement leads to the discovery of some new fact. The relevance under the exception postulated by Section 27 aforesaid, is limited “… as relates distinctly to the fact thereby discovered….”. The rationale behind Section 27 of the Evidence Act is, that the facts in question would have remained unknown but for the disclosure of the same by the accused. The discovery of facts itself, therefore, substantiates the truth of the confessional statement. And since it is truth that a court must endeavour to search, Section 27 aforesaid has been incorporated as an exception to the mandate contained in Sections 25 and 26 of the Evidence Act. 24. In the case of “Abdulwahab Abdulmajid Baloch v. State of Gujarat”, reported in (2009) 11 SCC 625 , it was found that the bullet found in the body of the deceased was fired from the weapons seized however, it was found not sufficient to convict the accused. The Hon'ble Supreme Court has held as under, 37. “Be that as it may, we feel that only because the recovery of a weapon was made and the expert opined that the bullet found in the body of the deceased was fired from one of the weapons seized, by itself cannot be the sole premise on which a judgment of conviction under Section 302 could be recorded. There was no direct evidence. The accused, as noticed hereinbefore, was charged not only under Section 302 read with Section 34 of the Penal Code but also under Section 302 read with Section 120B thereof. The murder of the deceased was said to have been committed by all the accused persons upon hatching a conspiracy. This charge has not been proved. 38. The learned trial Judge himself opined that the recovery having been made after nine months, the weapon might have changed in many hands. In absence of any other evidence connecting the accused with commission of crime of murder of the deceased, in our opinion, it is not possible to hold that the appellant on the basis of such slander evidence could have been found guilty for commission of offence punishable under Section 302 of the Penal Code.” 25. In absence of any other evidence connecting the accused with commission of crime of murder of the deceased, in our opinion, it is not possible to hold that the appellant on the basis of such slander evidence could have been found guilty for commission of offence punishable under Section 302 of the Penal Code.” 25. In the case of “Brijesh Mavi v. State (NCT of Delhi)”, reported in (2012) 7 SCC 45 , the Hon'ble Supreme Court acquitted the accused at whose instance the firearm was recovered. 26. In the present case neither the recovery has been proved nor the bloodstained sword or the confessional statement of the accused has been brought on record, therefore, these circumstances cannot be used against the petitioner to convict him for the offence of murder. 27. It is the prosecution evidence that the accused himself had taken his wife to the hospital and the prosecution witnesses have seen the appellant in the hospital. The police got the statement of the accused recorded under Section 164 Cr.P.C where he has denied that he killed his wife. P.W 2, namely, Indra Narayan Mishra has not stated in his evidence that the appellant had killed the deceased. P.W 5, Geeta Devi also did not say in the court that the appellant had killed the deceased. She has admitted in the court that she has not seen the accused quarreling with the deceased. Kanti Devi (P.W 6) also did not say that the appellant killed the deceased. P.W 7, who accompanied the complainant to the house of the appellant on receiving the information, has stated in the court that he had received the information that Veena Devi (deceased) was not well and therefore, they proceeded to the village of the appellant to see Veena Devi. Thus, on the material aspects these prosecution witnesses have not supported the case of the prosecution. The statement of the accused recorded under Section 164 Cr.P.C has been brought on record by prosecution itself. In so far as the prosecution witnesses, who have not supported the allegation of murder of his wife by the appellant, have not been declared hostile and therefore, the defence can rely on the evidence of the prosecution witnesses who have not been declared hostile. 28. In so far as the prosecution witnesses, who have not supported the allegation of murder of his wife by the appellant, have not been declared hostile and therefore, the defence can rely on the evidence of the prosecution witnesses who have not been declared hostile. 28. In the case of “Mukhtiar Ahmed Ansari v. State (NCT of Delhi)”, reported in (2005) 5 SCC 258, the Hon’ble Supreme Court has held that if a witness has not been declared hostile, the accused can rely on the evidence of such witnesses. A similar view has been take by the Hon’ble supreme Court in the case of “Raja Ram Vs. State of Rajasthan”, reported in (2005) 5 SCC 272. 29. In the case of Javed Masood v. State of Rajasthan, (2010) 3 SCC 538 , the Hon’ble Supreme court has held as under, 20. “In the present case the prosecution never declared PWs 6, 18, 29 and 30 “hostile”. Their evidence did not support the prosecution. Instead, it supported the defence. There is nothing in law that precludes the defence to rely on their evidence. 21. This Court in Mukhtiar Ahmed Ansari v. State (NCT of Delhi)”, reported in (2005) 5 SCC 258, observed: 30. A similar question came up for consideration before this Court in Raja Ram v. State of Rajasthan, (2005) 5 SCC 272 In that case, the evidence of the doctor who was examined as a prosecution witness showed that the deceased was being told by one K that she should implicate the accused or else she might have to face prosecution. The doctor was not declared ‘hostile’. The High Court, however, convicted the accused. This Court held that it was open to the defence to rely on the evidence of the doctor and it was binding on the prosecution.” 30. The doctor was not declared ‘hostile’. The High Court, however, convicted the accused. This Court held that it was open to the defence to rely on the evidence of the doctor and it was binding on the prosecution.” 30. The Sessions court has relied on the following circumstances for convicting the appellant: (I)The deceased who was wife of the accused sustained serious injuries in the house of the accused; (II)The accused has not explained how such injuries were caused to the deceased, (III)There was no access to outsider in the house and there is no reason why any outsider would enter into the house of the accused; (IV)If the story of the defence is accepted then, how the accused has not suffered any injuries; (V)The accused was present with his wife in his house in the night of the occurrence; (VI)There is evidence that the relation between the accused and the deceased was not cordial and the accused had given torture to the deceased in connection with the demand of dowry; (VII)Blood stained earth was seized from the house; (VIII)Blood stained sword was recovered from the house at the instance of the accused and accused has himself signed the seizure list; (IX)There was no objection raised by the accused regarding recovery of sword. The accused has given his confessional statement in writing; (X)Within 7 years of marriage, deceased has been continuously tortured in connection with the demand of dowry of motorcycle and radio; (XI)The dacoits would not have concealed the weapon of assault in the house of the accused, rather they would have carried it with themselves. (XII)The motive of the crime was demand of dowry. 31. It has been settled through a catena of judgments of the Hon'ble Supreme Court that a conviction can be based on the circumstantial evidence however, it must be found that the circumstances lead to only one conclusion that the accused has committed the crime. In a recent judgment, the Hon'ble Supreme Court in the case of “Brijesh Mavi v. State (NCT of Delhi)”, reported in, (2012) 7 SCC 45 , has held as under, 27. “The principles of law governing proof of a criminal charge by circumstantial evidence need hardly any reiteration. In a recent judgment, the Hon'ble Supreme Court in the case of “Brijesh Mavi v. State (NCT of Delhi)”, reported in, (2012) 7 SCC 45 , has held as under, 27. “The principles of law governing proof of a criminal charge by circumstantial evidence need hardly any reiteration. From the several decisions of this Court available on the issue the said principles can be summed up by stating that not only the prosecution must prove and establish the incriminating circumstance(s) against the accused beyond all reasonable doubt but the said circumstance(s) must give rise to only one conclusion to the exclusion of all others, namely, that it is the accused and nobody else who had committed the crime. The above principle is deducible from the five propositions laid down by this Court in Sharad Birdhichand Sarda v. State of Maharashtra which principles have been consistently followed in Tanviben Pankajkumar Divetia v. State of Gujarat, Vikram Singh v. State of Punjab, Aftab Ahmad Anasari v. State of Uttaranchal, Sanatan Naskar v. State of W.B. and Mohd. Arif v. State (NCT of Delhi).” 32. In the case of “Kishore Chand v. State of H.P.”, reported in (1991) 1 SCC 286 , the Hon'ble Supreme Court has held as under, 4. “The question, therefore, is whether the prosecution proved guilt of the appellant beyond all reasonable doubt. In a case of circumstantial evidence, all the circumstances from which the conclusion of the guilt is to be drawn should be fully and cogently established. All the facts so established should be consistent only with the hypothesis of the guilt of the accused. The proved circumstances should be of a conclusive nature and definite tendency, unerringly pointing towards the guilt of the accused. They should be such as to exclude every hypothesis but the one proposed to be proved. The circumstances must be satisfactorily established and the proved circumstances must bring home the offences to the accused beyond all reasonable doubt. It is not necessary that each circumstance by itself be conclusive but cumulatively must form unbroken chain of events leading to the proof of the guilt of the accused. If those circumstances or some of them can be explained by any of the reasonable hypothesis then the accused must have the benefit of that hypothesis. 5. In assessing the evidence imaginary possibilities have no role to play. If those circumstances or some of them can be explained by any of the reasonable hypothesis then the accused must have the benefit of that hypothesis. 5. In assessing the evidence imaginary possibilities have no role to play. What is to be considered are ordinary human probabilities. In other words when there is no direct witness to the commission of murder and the case rests entirely on circumstantial evidence, the circumstances relied on must be fully established. The chain of events furnished by the circumstances should be so far complete as not to leave any reasonable ground for conclusion consistent with the innocence of the accused. If any of the circumstances proved in a case are consistent with the innocence of the accused or the chain of the continuity of the circumstances is broken, the accused is entitled to the benefit of the doubt. 6. In assessing the evidence to find these principles, it is necessary to distinguish between facts which may be called primary or basic facts on one hand and inference of facts to be drawn from them, on the other. In regard to the proof of basic or primary facts, the court has to judge the evidence in the ordinary way and in appreciation of the evidence in proof of those basic facts or primary facts, there is no scope for the application of the doctrine of benefit of doubt. The court has to consider the evidence and decide whether the evidence proves a particular fact or not. Whether that fact leads to the inference of the guilt of the accused or not is another aspect and in dealing with this aspect of the problem, the doctrine of benefit would apply and an inference of guilt can be drawn only if the proved facts are inconsistent with the innocence of the accused and are consistent only with his guilt. There is a long distance between may be true and must be true. The prosecution has to travel all the way to establish fully all the chain of events which should be consistent only with hypothesis of the guilt of the accused and those circumstances should be of conclusive nature and tendency and they should be such as to exclude all hypothesis but the one proposed to be proved by the prosecution. The prosecution has to travel all the way to establish fully all the chain of events which should be consistent only with hypothesis of the guilt of the accused and those circumstances should be of conclusive nature and tendency and they should be such as to exclude all hypothesis but the one proposed to be proved by the prosecution. In other words, there must be a chain of evidence so far consistent and complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that in all probability the act must have been done by the accused and the accused alone.” 33. When a father was charged for murder of his own daughters, the Hon'ble Supreme Court in the case of “Balwinder Singh v. State of Punjab”, reported in AIR 1996 SC 607 has observed as under, 4. “In a case based on circumstantial evidence, it is now wellsettled that the circumstances from which the conclusion of guilt is to be drawn should be fully proved and those circumstances must be conclusive in nature to connect the accused with the crime. All the links in the chain of events must be established beyond a reasonable doubt and the established circumstances should be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence. In a case based on circumstantial evidence, the court has to be on its guard to avoid the danger of allowing suspicion to take the place of legal proof and has to be watchful to avoid the danger of being swayed by emotional considerations, howsoever strong they may be, to take the place of proof. It is in the context of the abovesettled principles, that we shall analyse the evidence led by the prosecution.” 34. While stressing the need for care and caution with which circumstantial evidence has to be evaluated, the Hon'ble Supreme Court in the case of “Madhu v. State of Kerala”, reported in (2012) 2 SCC 399 , has held as under, 5. “The care and caution with which circumstantial evidence has to be evaluated stands recognised by judicial precedent. Only circumstantial evidence of a very high order can satisfy the test of proof in a criminal prosecution. “The care and caution with which circumstantial evidence has to be evaluated stands recognised by judicial precedent. Only circumstantial evidence of a very high order can satisfy the test of proof in a criminal prosecution. In a case resting on circumstantial evidence, the prosecution must establish a complete unbroken chain of events leading to the determination that the inference being drawn from the evidence is the only inescapable conclusion. In the absence of convincing circumstantial evidence, an accused would be entitled to the benefit of doubt.” 35. The complainant, P.W 3 has suppressed the name of the person who had informed him about his daughter not being well, with a view to suppress the truth. P.W 1 has admitted in the court that the complainant had gone to the police station where he gave his fardbeyan and on the basis of his statement the case was registered and P.W 3, complainant, himself has also admitted in paragraph8 of his evidence in the court that he gave his statement at the police station. But, the record of the case would indicate that the fardbeyan of the informant was recorded at the hospital. 36. We find that the seizure list witnesses namely, Moti Rajak, Rubber Roy and Jeev Lal Ravidas have not supported the prosecution case. P.W 4 has stated in the court that the Investigating officer scolded him and asked him to sign the seizurememo and therefore, he has signed it. P.W 9 has deposed that he signed on plain paper as directed by the Investigating Officer. P.W 8 has also stated in the court that nothing was seized in his presence. The alleged recovery of the blood stained sword has not been proved by the prosecution and, in fact, the blood stained sword was not even produced in the court. The alleged confessional statement of the accused recorded by the police on 22.02.1987 is also not on record. In view of the aforesaid facts, the prosecution has not been able to prove recovery of the blood stained sword at the instance of the appellant. There is no serological report brought on record by the prosecution to establish that the blood stained soil allegedly taken from the house of the appellant contained human blood. 37. On the point of demand of dowry also the prosecution witnesses have contradicted each other. There is no serological report brought on record by the prosecution to establish that the blood stained soil allegedly taken from the house of the appellant contained human blood. 37. On the point of demand of dowry also the prosecution witnesses have contradicted each other. In the fardbeyan the complainant alleged that his daughter used to tell him that her husband was harassing her by saying that boys less literate than him had been given dowry of Rs. 31,001/. However, in the court the complainant has changed his version and added the demand of radio and motorcycle by the accused. P.W 7, who is the cousin (brother) of the complainant has stated in the court that the appellant was harassing his wife for watch, radio and motorcycle. 38. We find that most of the witnesses examined by the prosecution are related to the complainant, however, even the allegation of murder has not been supported by most of the witnesses in their depositions in the court. The prosecution has suppressed the material witnesses who could have disclosed the truth. The complainant himself has refused to disclose the name of the person who came to his village to give information about his daughter. The defence has taken a plea that wife of the appellant was assaulted in the night by the dacoits. The Investigation Officer and the Doctor who conducted the postmortem examination over the deadbody of the deceased have also not been examined by the prosecution. We are of the view that circumstances relied upon by the prosecution have not been proved and there are serious infirmities in the circumstances relied upon by the prosecution. Suspicion cannot take the place of proof. 39. In the case of “Anil Kumar Singh v. State of Bihar”, reported in (2003) 9 SCC 67 , the Hon'ble Supreme court while stressing the need to be cautious and avoid the risk of allowing suspicion to take the place of proof, has held thus, 8. “It is well settled that in order to base a conviction on circumstantial evidence, each and every piece of incriminating circumstance must be clearly established by reliable and clinching evidence and the circumstances so proved must form such a chain of events as would permit no conclusion other than the one of guilt of the accused and the circumstances cannot be explained on any hypothesis other than the guilt of the accused. The court has to be cautious and avoid the risk of allowing mere suspicion, howsoever strong, to take the place of proof. A mere moral conviction or a suspicion howsoever grave it may be cannot take the place of proof.” 40. Again, in the case of “Ramreddy Rajesh Khanna Reddy v. State of A.P.”, reported in (2006) 10 SCC 172 , the Hon'ble Supreme Court has held as under, 26. “It is now well settled that with a view to base a conviction on circumstantial evidence, the prosecution must establish all the pieces of incriminating circumstances by reliable and clinching evidence and the circumstances so proved must form such a chain of events as would permit no conclusion other than one of guilt of the accused. The circumstances cannot be on any other hypothesis. It is also well settled that suspicion, however grave it may be, cannot be a substitute for a proof and the courts shall take utmost precaution in finding an accused guilty only on the basis of the circumstantial evidence.” 41. In view of the aforesaid, we are of the opinion that the appellant has been convicted only on the basis of suspicion. There is no legal evidence brought on record by the prosecution to establish that the appellant has killed his wife. The prosecution has miserably failed to prove beyond all shadows of reasonable doubt offences under Section 302 and under Section 304(B) I.P.C. against the appellant. Accordingly, the judgment and order dated 13/14.02.2002 passed by Sessions Judge, Jamtara in Sessions Case No.119 of 1987/369 of 2001 is hereby setaside. Since the accusedappellant, namely Anil Kumar Tiwary @ Anil Tiwary, is in judicial custody, he is directed to be released frothwith, if not wanted in any other case. 42. However, there is one more aspect of the matter which needs to be noticed. In the present case, summons were issued to the Investigating Officer and the Doctor by the court for their evidence. The last summon was issued on 19.09.1994 by the court to the Investigating Officer. The prosecution evidence was closed on 21.11.1994. Thereafter, the case came up for hearing before the trial court on more than 80 occasions, however, no effort was taken either by the Court or the Public Prosecutor to secure the presence of the Investigating Officer and the Doctor. The prosecution evidence was closed on 21.11.1994. Thereafter, the case came up for hearing before the trial court on more than 80 occasions, however, no effort was taken either by the Court or the Public Prosecutor to secure the presence of the Investigating Officer and the Doctor. The manner in which the investigation in the case has been conducted and the trial proceeded, has prompted us to take a look at the role of the Investigating Officer, the Public Prosecutor and the Trial Court in criminal justice system. Lord Denning has observed in the case of “Jones Vs. National Coal Board”, reported in 1957 (2) QB 55 as under, “.... It's very well to paint justice blind, but she does better without a bandage around her eyes. She should be blind indeed to favour or prejudice, but clear to see which way lies the truth....”. 43. In the case of “Maria Margarida Sequeira Fernandes v. Erasmo Jack De Sequeira”, reported in (2012) 5 SCC 370 , the Hon'ble Supreme Court has held as under, 33. The truth should be the guiding star in the entire judicial process. Truth alone has to be the foundation of justice. The entire judicial system has been created only to discern and find out the real truth. Judges at all levels have to seriously engage themselves in the journey of discovering the truth. That is their mandate, obligation and bounden duty. Justice system will acquire credibility only when people will be convinced that justice is based on the foundation of the truth.” 44. In the case of “Zahira Habibulla H. Sheikh v. State of Gujarat”, reported in (2004) 4 SCC 158 , the Hon'ble Supreme Court has summarised the essence of a criminal trial in the following words, 38. “A criminal trial is a judicial examination of the issues in the case and its purpose is to arrive at a judgment on an issue as to a fact or relevant facts which may lead to the discovery of the fact issue and obtain proof of such facts at which the prosecution and the accused have arrived by their pleadings; the controlling question being the guilt or innocence of the accused. Since the object is to mete out justice and to convict the guilty and protect the innocent, the trial should be a search for the truth and not a bout over technicalities, and must be conducted under such rules as will protect the innocent, and punish the guilty. The proof of charge which has to be beyond reasonable doubt must depend upon judicial evaluation of the totality of the evidence, oral and circumstantial, and not by an isolated scrutiny.” Role of Investigating Officer: 45. The duties of the Investigating Agency and the role of the courts, after the process of investigation is over and a report thereof is submitted to the court, has been laid down in the Code of Criminal procedure, 1973. During the course of investigation, the power of the investigating agency is very wide and expansive. A mandatory duty however, has been cast on the investigating agency to maintain a case diary of every investigation on a day to day basis. Under the provision of Section 173(5) Cr.P.C, it is incumbent on the investigating agency to forward/transmit to the court concerned all documents/statements etc. on which the prosecution proposes to rely in the course of the trial. However, this duty is subject to the provision of Section 173(6) Cr.P.C under which the investigating officer can request the court concerned to exclude any part of the statement or documents forwarded under Section 173(5) Cr.P.C from the copies to be granted to the accused. 46. In a case of rape of minor where, Investigating Officer tried to help the accused by giving contradictory statement relating to birth certificate of the prosecutrix, the Hon'ble Supreme Court in the case of “Mohd. Imran Khan v. State Government (NCT of Delhi)”, reported in (2011) 10 SCC 192 , while reiterating the need of a free and fair investigation, has observed as under, 31. “The investigation into a criminal offence must be free from all objectionable features or infirmities which may legitimately lead to a grievance to either of the parties that the investigation was unfair or had been carried out with an ulterior motive which had an adverse impact on the case of either of the parties. The investigating officer is supposed to investigate an offence avoiding any kind of mischief or harassment to either of the party. The investigating officer is supposed to investigate an offence avoiding any kind of mischief or harassment to either of the party. He has to be fair and conscious so as to rule out any possibility of bias or impartial conduct so that any kind of suspicion to his conduct may be dispelled and the ethical conduct is absolutely essential for investigative professionalism. The investigating officer “is not merely to bolster up a prosecution case with such evidence as may enable the court to record a conviction but to bring out the real unvarnished truth”. 47. In the case of “Sidhartha Vashisht @ Manu Sharma Vs. State (NCT of Delhi)”, reported in (2010) 6 SCC 1 , Hon’ble Supreme Court while stressing the need for impartial investigation by the Investigating Officer has observed as under, 201. “Historically but consistently the view of this Court has been that an investigation must be fair and effective, must proceed in proper direction in consonance with the ingredients of the offence and not in haphazard manner. In some cases besides investigation being effective the accused may have to prove miscarriage of justice but once it is shown the accused would be entitled to definite benefit in accordance with law. The investigation should be conducted in a manner so as to draw a just balance between citizen's right under Articles 19 and 21 and expansive power of the police to make investigation. These well established principles have been stated by this Court in Sasi Thomas v. State, (2006)12 SCC 421 , State (Inspector of Police) v. Surya Sankaram Karri, (2006) 7 SCC 172 and T.T. Antony v. State of Kerala, (2001) 6 SCC 181 . 202. In Nirmal Singh Kahlon v. State of Punjab, (2009) 1 SCC 441 this Court specifically stated that a concept of fair investigation and fair trial are concomitant to preservation of the fundamental right of the accused under Article 21 of the Constitution of India. We have referred to this concept of judicious and fair investigation as the right of the accused to fair defence emerges from this concept itself. The accused is not subjected to harassment, his right to defence is not unduly hampered and what he is entitled to receive in accordance with law is not denied to him contrary to law.” 48. In the case of “Jamuna Chaudhary & Ors. Vs. The accused is not subjected to harassment, his right to defence is not unduly hampered and what he is entitled to receive in accordance with law is not denied to him contrary to law.” 48. In the case of “Jamuna Chaudhary & Ors. Vs. State of Bihar” reported in AIR 1974 SC 1822 , the Hon'ble supreme Court has held that, “The duty of the Investigating Officers is not merely to bolster up a prosecution case with such evidence as may enable the Court to record a conviction but to bring out the real unvarnished truth.” 49. In the case of “Rampal Pithwa Rahidas v. State of Maharashtra”, reported in 1994 Supp (2) SCC 73, the Hon’ble Supreme Court while reiterating the duty of the investigating agency to act free and fairly, has observed as under, 37. “The quality of a nation's civilisation,” it is said, “can be largely measured by the methods it uses in the enforcement of criminal law” and going by the manner in which the investigating agency acted in this case causes concern to us. In every civilised society the police force is invested with the powers of investigation of the crime to secure punishment for the criminal and it is in the interest of the society that the investigating agency must act honestly and fairly and not resort to fabricating false evidence or creating false clues only with a view to secure conviction because such acts shake the confidence of the common man not only in the investigating agency but in the ultimate analysis in the system of dispensation of criminal justice. Let no guilty man go unpunished but let the end not justify the means! The courts must remain ever alive to this truism. Proper results must be obtained by recourse to proper means — otherwise it would be an invitation to anarchy.” 50.In the case of “Shailendra Kumar v. State of Bihar”, reported in (2002) 1 SCC 655 , the Hon’ble Supreme Court has pointed out that the presence of the Investigating Officer at the time of trial is essential. It is his duty to keep the witnesses present. It has further held that if there is a failure on the part of the Investigating Officer, it is the duty of the court to issue summons to the Investigating Officer. The Hon’ble Supreme Court has held thus, 9. It is his duty to keep the witnesses present. It has further held that if there is a failure on the part of the Investigating Officer, it is the duty of the court to issue summons to the Investigating Officer. The Hon’ble Supreme Court has held thus, 9. “In our view, in a murder trial it is sordid and repulsive matter that without informing the police station officerincharge, the matters are proceeded with by the court and by the APP and tried to be disposed of as if the prosecution has not led any evidence. From the facts stated above, it appears that the accused wants to frustrate the prosecution by unjustified means and it appears that by one way or the other the Additional Sessions Judge as well as the APP have not taken any interest in discharge of their duties. It was the duty of the Sessions Judge to issue summons to the investigating officer if he failed to remain present at the time of trial of the case. The presence of investigating officer at the time of trial is must. It is his duty to keep the witnesses present. If there is failure on the part of any witness to remain present, it is the duty of the court to take appropriate action including issuance of bailable/nonbailable warrants, as the case may be. It should be well understood that the prosecution cannot be frustrated by such methods and victims of the crime cannot be left in a lurch.” 51. We find that way back in 1950, the State of Bihar had issued a Memo dated 28.09.1950 addressing the concern regarding nonappearance of Police Officers before the court. Again, the Government of Bihar Political (Police) Department vide letter dated 21st June, 1951 issued a D.O. letter asking the Inspector General of Police to request all the Superintendents of Police to prepare every month lists of instances (a) where Police Officers were summoned to give evidence but did not appear and (b) where they attended court in response to summons without their evidence being recorded. Such letters have been written on several other occasions also to the concerned authorities. Such letters have been written on several other occasions also to the concerned authorities. We also find that there is a Police Order No. 47 in this regard, which is extracted below: POLICE ORDER No. 47 “It has been brought to the notice of Government that attendance of the police officers and men in court is not ensured and that processes, etc., against them are treated mechanically. In future the headquarters Deputy Superintendent of Police will be held personally responsible for proper and prompt attention to processes received in police office. A special register should be maintained to indicate the postings, and leave addresses of all SubInspectors, Assistant SubInspectors, Writer Constables of the district and the Head Moharrir under the supervision of the Headquarters Deputy Superintendent of Police will be responsible for keeping it uptodate. Likewise, the Sub divisional Police Officer/Circle Inspector should maintain similar registers for officers and men under their charge. This register should invariably be consulted before processes are dealt with to guard against mistakes and delays. (1)Another register should also be maintained in the office of the Superintendent of Police showing, (1) date of receipt of summons, (2) date of dispatch to the persons concerned, (3) returnable date, (4) date of service, and (5) date of return from police office to the issuing Court. A similar register should be maintained by the Sub divisional Police Officers and Circle Inspectors in respect of summonses sent through them. The service return of the summonses shall be sent to the issuing court through the office from which they were received. (2)Considerable dislocation of work and expenditure of travelling allowance are caused when officers are repeatedly summoned to appear in Courts to give evidence after they have been transferred to some other district. Officers proceeding on leave or transfer must themselves give to the Court SubInspectors a list of cases in which they have to give evidence. It should then be the duty of the court officers to arrange for the evidence of such officers being taken on contiguous dates before they leave the district. If this is not possible, such officer should be informed accordingly and they will furnish to the prosecuting officer their addresses. In such cases, the summonses may be sent under registered cover well in advance or telegraphically. Defence lawyers generally desire to examine the investigating officer last. If this is not possible, such officer should be informed accordingly and they will furnish to the prosecuting officer their addresses. In such cases, the summonses may be sent under registered cover well in advance or telegraphically. Defence lawyers generally desire to examine the investigating officer last. Much harassment is often caused to police officers by the repeated absences of a small number of prosecution witnesses. In such situation prosecuting officers should press for the police officer's evidence being recorded as soon as the majority of the prosecution witnesses have been examined and give the assurance that the investigating officer would be recalled if desired after all the prosecution witnesses have testified. Every police officer summoned to appear in Court shall, if he cannot appear on the date fixed inform the Magistrate the prosecuting officer of the reason of his failure. This explanation should not be a matter of routine. If the reason for absence is found not satisfactory, the defaulters should be severely dealt with.” It should be the duty of the Court Sub-Inspectors to report to the Superintendent of Police cases of failure on the part of police officers to attend court. Any Court SubInspector/A.D.P. who fails to carry out these instructions should also be suitably dealt with.” 52. We also find that several High Courts and the Hon'ble Supreme Court have issued directions to the Director General of Police and/or the Secretary, Home Department for issuing direction to the Investigating Officers for prompt, swift and honest investigation. Role of Public Prosecutor: 53. In “Harry Berger Vs. United States of America”, reported in [(1934) 295 US 7889], way back in 1935 while delivering the opinion of the Supreme Court of United States, Mr. Justice Sutherland observed that, “The Public Prosecutor is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as sits obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. The twofold aim of the United States Attorney is that guilt shall not escape or innocence suffer. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.” 54. The twofold aim of the United States Attorney is that guilt shall not escape or innocence suffer. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.” 54. In the case of “Ram Ranjan Roy Vs. Emperor”, reported in (1915) ILR 42 Cal 422, Jenkins, C.J., has observed, 10. “That purpose is not to support at all costs a theory, but to investigate the offence and to determine the guilt or innocence of the accused, and the duty of a Public Prosecutor is to represent not the police, but the Crown, and his duty should be discharged by him fairly and fearlessly, and with a full sense of the responsibility that attaches to his position. The guilt of innocence of the accused is to be determined by the tribunals appointed by law and not according to the tastes of any one else. 11. It was, therefore, undoubtedly the duty of the Public Prosecutor, in capital case like the present, to have placed before the trial Court the testimony of all available eyewitnesses. This duty is clearly illustrated by the case of Reg. Vs. Holden (1983) 8 C. & P. 609, where in a murder trial counsel for the prosecution did not propose to call an eyewitness because she was brought to Court by the defence. On that the presiding Judge remarked “she ought to be called. She was present, at the transaction. Every witness who was present at a transaction of this sort ought to be called, and even if they give different accounts, it is fit that the jury should have their evidence so as to draw their own conclusion as to the real truth of the matter.” 55. The Supreme Court of Canada in the case of “R. Vs. Boucher” reported in (1954) 110 CCC 263, has observed, 14. “It cannot be over emphasised that the purpose of a criminal prosecution is not to obtain a conviction; it is to lay before a jury what the Crown considers to be credible evidence relevant to what is alleged to be a crime. Counsel has a duty to see that all available legal proof of the facts is presented; it should be done firmly and pressed to its legitimate strength, but it must also be done fairly. Counsel has a duty to see that all available legal proof of the facts is presented; it should be done firmly and pressed to its legitimate strength, but it must also be done fairly. The role of Prosecutor excludes any notion of winning or losing; her/his function is a matter of public duty than which in civil life there can be none charged with greater responsibility. It is to be efficiently performed with an ingrained sense of dignity, the seriousness and the justness of judicial proceedings.” 56. European Guidelines on Ethics and Conduct for Public Prosecutors state that when acting within the framework of criminal proceedings, Public Prosecutor should at all times carry out their functions fairly, impartially, objectively and, within the framework of the provisions laid down by law, independently. 57. Commenting on the conduct of the prosecution in suppressing evidence favourable to the accused and using perjured testimony, the US Supreme Court in the case of “Giles Vs. Maryland” reported in 386 US 66 (1967) has held that State's obligation under the “due process clause” 'is not to convict, but to see that so far as possible, truth emerges'. The US Court has gone to the extend of permitting illegally obtained evidence to impeach a defendant's fraudulent statements . In the case of “United States Vs. Havens”, reported in 446 US 620 (1980) it was held that the Government may use illegally obtained evidence to impeach a defendant's fraudulent statements during crossexamination for the purpose of seeking justice, for the purpose of 'arriving at the truth, which is a fundamental goal of our legal system'. 58. The courts in New Zealand have also explained that the Crown's duty is to present its case fairly and completely, and to be as firm as the circumstances warrant, but the Crown must never “struggle for a conviction”. It has been held, in the case of “R. Vs. Roulston” reported in (1976) 2 NZLR 644, that it is “quite impermissible” for a Prosecutor to attempt to persuade the jury by factors of prejudice or emotion and that the Prosecutor is neither the lawyer for the victim, nor a lawyer for the police. He or she acts on behalf of the community, and has a responsibility to ensure that justice is done in a fair and balanced way. 59. In “R. Vs. He or she acts on behalf of the community, and has a responsibility to ensure that justice is done in a fair and balanced way. 59. In “R. Vs. Ward (Judith)” reported in (1993) 2 All ER 577 (CA), it has been held that it is the duty of the prosecution to ensure fair trial for both the prosecution and the accused. The duty of disclosure would usually be performed by supplying the copies of the witnesses' statement to the defence and all relevant experiments and tests must also be disclosed. It was held that the common law duty to disclose would cover anything which might assist the defence. 60. In the case of “Dilip Premnarayan Tiwari v. State of Maharashtra”, reported in (2010) 1 SCC 775 , the Hon’ble Supreme Court has observed, 47. “......The task of the Public Prosecutor is not only to secure the conviction, he has a duty to the court. He is an officer of the court and, therefore, in all fairness, firstly the document should have been brought on record and secondly, even if Dr. Anakal who recorded the dying declaration was not confronted with that dying declaration, that opportunity could not have been denied before the High Court since the proceedings before the High Court were in the nature of original proceedings and an extended trial. We are surprised that the Public Prosecutor opposed the application. Fairness of the trial is the basic requirement in the criminal law. We think that the Public Prosecutor ought not to have opposed the production of the document. We, therefore, allowed the production of the document.” 61. In the case of “Hitendra Vishnu Thakur v. State of Maharashtra”, reported in (1994) 4 SCC 602 , the Hon'ble Supreme Court has held as under, 23. “...... A public prosecutor is an important officer of the State Government and is appointed by the State under the Code of Criminal Procedure. He is not a part of the investigating agency. He is an independent statutory authority. The public prosecutor is expected to independently apply his mind to the request of the investigating agency before submitting a report to the court for extension of time with a view to enable the investigating agency to complete the investigation. He is not merely a post office or a forwarding agency. He is an independent statutory authority. The public prosecutor is expected to independently apply his mind to the request of the investigating agency before submitting a report to the court for extension of time with a view to enable the investigating agency to complete the investigation. He is not merely a post office or a forwarding agency. A public prosecutor may or may not agree with the reasons given by the investigating officer for seeking extension of time and may find that the investigation had not progressed in the proper manner or that there has been unnecessary, deliberate or avoidable delay in completing the investigation.” 62. In the case of “Shrilekha Vidyarthi (Kumari) v. State of U.P.”, reported in (1991) 1 SCC 212 , the Hon'ble Supreme Court has held as under, 14. “..... Section 321 permits withdrawal from prosecution by the Public Prosecutor or Assistant Public Prosecutor in charge of a case, with the consent of the court, at any time before the judgment is pronounced. This power of the Public Prosecutor in charge of the case is derived from statute and the guiding consideration for it, must be the interest of administration of justice. There can be no doubt that this function of the Public Prosecutor relates to a public purpose entrusting him with the responsibility of so acting only in the interest of administration of justice. In the case of Public Prosecutors, this additional public element flowing from statutory provisions in the Code of Criminal Procedure, undoubtedly, invest the Public Prosecutors with the attribute of holder of a public office which cannot be whittled down by the assertion that their engagement is purely professional between a client and his lawyer with no public element attaching to it.” 63. In the case of “Deepak Aggarwal Vs. Keshav Kaushik & Ors.” reported in JT 2013 (2) SC 139, the Hon'ble Supreme Court has held as under, 70. “In India, role of Public Prosecutor is no different. He has at all times to ensure that an accused is tried fairly. He should consider the views, legitimate interests and possible concern of witnesses and victims. He is supposed to refuse to use evidence reasonably believed to have been obtained through recourse to unlawful methods. His acts should always serve and protect the public interest. The State being a Prosecutor, the Public Prosecutor carries a primary position. He should consider the views, legitimate interests and possible concern of witnesses and victims. He is supposed to refuse to use evidence reasonably believed to have been obtained through recourse to unlawful methods. His acts should always serve and protect the public interest. The State being a Prosecutor, the Public Prosecutor carries a primary position. He is not a mouthpiece of the investigating agency. In Chapter II of the BCI Rules, it is stated that an advocate appearing for the prosecution of a criminal trial shall so conduct the prosecution that it does not lead to conviction of the innocent; he should scrupulously avoid suppression of material capable of establishing the innocence of the accused.” 64. The Madras High Court in the case of “Meera Sahib Vs. The State represented by the SubInspector of Police, Tenkasi Police Station” reported in (1999) 1 MLJ(Cri) 226, has observed as under, 21. “It shall be the duty of the Assistant Public Prosecutor to inform all the facts to the court. It shall be the duty of the court to appraise itself of the reasons which prompt the Assistant Public Prosecutor to withdraw the case from the prosecution. The court as well as the Assistant Public Prosecutor have responsibility and stake in the administration of criminal justice. Both have a duty to protect the administration of criminal justice against pollible abuse or misuse by the executive by resort to the provisions of Sec. 321 of Crl.P.C. 22. The prosecutor has to be fair in the presentation of the prosecution case. He should not suppress or keep back from the court the material which is relevant to the determination of the issue to be decided by this Court. He should present a complete picture and not one sided picture. He should not be partial to the prosecution or to the accused. He has to be fair to both sides in the presentation of the case. He should not consciously misstate the facts, nor knowingly conceal the truth. 23. The Public Prosecutor is, in a larger sense, an officer of the court. He is bound to assist the court with his fairlyconsidered view. The court is entitled to have the benefit of the fair exercise of his function. He should not consciously misstate the facts, nor knowingly conceal the truth. 23. The Public Prosecutor is, in a larger sense, an officer of the court. He is bound to assist the court with his fairlyconsidered view. The court is entitled to have the benefit of the fair exercise of his function. A person appointed to this office must, in the interests of the public, have a high degree of efficiency, and knowledge of the Law of Crimes and Criminal Procedure Code. He must have character and integrity. He should be irreproachable and above suspicion. He must have a sense of his duty to the public and to the court, as overriding considerations. If these requisites are lacking, the incumbent to such an office would gravely injure the administration of criminal justice.” 65. The High Court of Madhya Pradesh has also dealt with the role of Public Prosecutor in a criminal trial in the case of “Imran Khan Vs. State of Madhya Pradesh, reported in 1994 MPLJ 862 and in the case of “Raju @ Rajendra Prasasd Vs. State of M.P., reported in 2002 Cri LJ 2367. Again, dealing with the sacrosanct duty of the Public Prosecutor, the High Court of Madhya Pradesh in the case of “Rameshchandra Agrawal Vs. State of Madhya Pradesh” reported in (2004)CrLJ 721 has expressed its displeasure on the role of A.G.P. who conducted the trial, in these words, 13. “In the present case, role of the A.G.P. is also condemnable. Though witness Komalbai was not served at any time, yet he has given up this witness. As it is mentioned above, she is the mother of the deceased and can throw sufficient light in the case. The learned A.G.P. knowing well that the letters said to have been written by the deceased prior to her death were seized and also sent for handwriting expert, did not make any effort to produce the same before the Court. It was his onerous duty to direct the concerned investigating agency to take effective step for bringing all those letters with handwriting expert report for filing before the court. It was his onerous duty to direct the concerned investigating agency to take effective step for bringing all those letters with handwriting expert report for filing before the court. He has not done so and on the contrary the poor father of the deceaseddaughter was required to rush to the Court and praying for production of these letters and handwriting expert report on which A.G.P. has not supported him and simply submitted that letters and handwriting expert report are not available and are not in his possession.” 66. Commenting on the conduct of the Public Prosecutor, the High court of Jammu and Kashmir in the case of “State Vs. Gh. Mohd. Raja & Ors.” reported in (1970) 0 KashLJ 21 , was at pains to observe, 6. “The prosecutor incharge of the case did not make any application in this behalf. This shows the incompetence of the prosecutor incharge of the case or the lack of the interest or knowledge that he has exhibited in prosecuting the case before the court below. It must be mentioned here that it is the bounden duty of the prosecutors incharge of criminal cases to apply their minds thoroughly to the cases they are prosecuting and not to mechanically deal with them, otherwise lack of interest or knowledge on their part is likely to have adverse effect on the result of many important cases. In the instant case I find that had the prosecutor Incharge of the case realised his responsibility and acted with interest he would have lost no time in applying to the court for issuing process to the witnesses who are Govt. servants in the case or even making an oral request to the court in this behalf. At one stage of the case I was of the opinion to reject the reference. But considering the important nature of the case and being conscious of the fact that the case of the prosecution may not suffer on this technical ground and may not go by default because of the incompetence and lack of interest exhibited by the prosecutor which has prevented the coming of some important material on the record through the witnesses who are yet to be examined in the case, I am inclined to take a different view.” 67. The responsibilities and duties of prosecution can be summarised as under, (i)An Ideal Prosecutor must consider herself/himself as an agent of justice. (ii)There should not be on part of a Public Prosecutor “a seemly eagerness for, or grasping at a conviction”. (iii)A Public Prosecutor should not by statement aggravate the case against the accused, or keep back a witness because her/his evidence may weaken the case for prosecution. (iv)A Public Prosecutor should place before the Court whatever evidence is in her/his possession. (v)The duty of the Public Prosecutor is to represent the State and not the police. (vi)A Public Prosecutor should discharge her/his duties fairly and fearlessly and with full sense of responsibility that attaches to her/his position. (vii)A Public Prosecutor cannot appear on behalf of the accused. (viii)The Prosecutor cannot act in a manner as if he is defending the accused. (ix)If there is some issue that the defence could have raised, but has failed to do so, then that should be brought to the attention of the court by the Public Prosecutor. Duty of the Court: 68. In the case of “Jennison v. Baker”, reported in (1972) 1 All ER 997, it has been held 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. 69. In the case of “Ram Chander Vs. The State of Haryana”, reported in AIR 1981 SC 1036 , Justice Chinnappa Reddy, speaking for the Court, has made the following remarks, (1) What is the true role of a judge trying a criminal case? Is he to assume the role of a referee in a football match or an umpire in a cricket match, occasionally answering, as Pollock and Maitland [Pollock and Maitlan: The history of English law] point out, the question 'How is that' or, is he to, in the words of Lord Denning 'drop the mantle of a judge and assume th role of an advocate'? [Jones Vs. National Coal Board: (1957) 2 ALL ER 155] Is he to be a spectator or a participant at the trial ? Is passivity or activity to mark his attitude? [Jones Vs. National Coal Board: (1957) 2 ALL ER 155] Is he to be a spectator or a participant at the trial ? Is passivity or activity to mark his attitude? If he desires to question any of the witnesses, how far can he go? At the witness who he suspects is lying or is he to be soft and suave? These are some of the questions which we are compelled to ask ourselves in this appeal on account of the manner in which the judge who tried the case put questions to some of the witnesses.” The Court has further observed in the said case that, “...... If a Criminal Court is to be an effective instrument in dispensing justice, the presiding judge must cease to be a spectator and a mere recording machine. He must become a participant in the trial by evincing intelligent active interest by putting questions to witnesses in order to ascertain the truth.” 70. In the case of “Ritesh Tewari Vs. State of U.P.” reported in (2010) 10 SCC 677 , the Hon'ble Supreme Court has made the observation, which is often quoted by the courts in India, 37. ... “Every trial is voyage of discovery in which truth is the quest”.' 71. In the case of “Zahira Habibulla H. Sheikh v. State of Gujarat”, reported in (2004) 4 SCC 158 , the Hon’ble Supreme Court while stressing the duty of the court in a criminal trial, has held under, 35. “This Court has often emphasised that in a criminal case the fate of the proceedings cannot always be left entirely in the hands of the parties, crimes being public wrongs in breach and violation of public rights and duties, which affect the whole community as a community and are harmful to the society in general. The concept of fair trial entails familiar triangulation of interests of the accused, the victim and the society and it is the community that acts through the State and prosecuting agencies. Interests of society are not to be treated completely with disdain and as persona non grata. Courts have always been considered to have an overriding duty to maintain public confidence in the administration of justice — often referred to as the duty to vindicate and uphold the “majesty of the law”. Interests of society are not to be treated completely with disdain and as persona non grata. Courts have always been considered to have an overriding duty to maintain public confidence in the administration of justice — often referred to as the duty to vindicate and uphold the “majesty of the law”. Due administration of justice has always been viewed as a continuous process, not confined to determination of the particular case, protecting its ability to function as a court of law in the future as in the case before it. If a criminal court is to be an effective instrument in dispensing justice, the Presiding Judge must cease to be a spectator and a mere recording machine by becoming a participant in the trial evincing intelligence, active interest and elicit all relevant materials necessary for reaching the correct conclusion, to find out the truth, and administer justice with fairness and impartiality both to the parties and to the community it serves. Courts administering criminal justice cannot turn a blind eye to vexatious or oppressive conduct that has occurred in relation to proceedings, even if a fair trial is still possible, except at the risk of undermining the fair name and standing of the judges as impartial and independent adjudicators. 43. 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 materials by playing an active role in the evidencecollecting process. They have to monitor the proceedings in aid of justice in a manner that something, which 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. 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. 55. The courts, at the expense of repetition we may state, 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 a 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 i.e. to render justice, in a case where the role of the prosecuting agency itself is put in issue and is said to be hand in glove with the accused, parading a mock fight and making a mockery of the criminal justice administration itself.” 72. In the case of “T.C. Mathai v. District & Sessions Judge, Thiruvananthapuram”, reported in (1999) 3 SCC 614 , the Hon'ble Supreme Court has held as under, 8. “The work in a court of law is a serious and responsible function. The primary duty of a criminal court is to administer criminal justice. Any lax or wayward approach, if adopted towards the issues involved in the case, can cause serious consequences for the parties concerned. It is not just somebody representing the party in the criminal court who becomes the pleader of the party. In the adversary system which is now being followed in India, both in civil and criminal litigation, it is very necessary that the court gets proper assistance from both sides.” 73. In the case of “Raghunandan v. State of U.P.”, reported in (1974) 4 SCC 186 ”, the Hon’ble Supreme Court has observed that “ …. In the adversary system which is now being followed in India, both in civil and criminal litigation, it is very necessary that the court gets proper assistance from both sides.” 73. In the case of “Raghunandan v. State of U.P.”, reported in (1974) 4 SCC 186 ”, the Hon’ble Supreme Court has observed that “ …. In a criminal case, the fate of the proceeding cannot always be left entirely in the hands of the parties. The Court has also a duty to see that essential questions are not, so far as reasonably possible, left unanswered.” 74. In the case of “Muniappan v. State of T.N.”, reported in (1981) 3 SCC 11 , the Hon’ble Supreme Court, while examining the role of the Sessions Judge at the time of hearing argument on the question of sentence, has observed as under, 2. “The judgments of the High Court and the Sessions Court, insofar as the sentence is concerned, leave much to be desired. In the first place, the Sessions Court overlooked the provision contained in Section 354(3) of the Code of Criminal Procedure, 1973, which provides, insofar as is relevant, that when the conviction is for an offence punishable with death, the judgment shall in the case of sentence of death state special reasons for such sentence. The learned Sessions Judge, in a very brief paragraph consisting of two sentences, has this to say on the question of sentence: “When the accused was asked on the question of sentence, he did not say anything. The accused has committed terrific double murder and so no sympathy can be shown to him.” The judgment of the Sessions Judge is in Tamil but we understand from the learned counsel, who appear in the case and both of whom understand Tamil well enough, that the Tamil word “Thayankaram” has been rightly translated as “terrific”. We plead our inability to understand what is meant by a “terrific” murder because all murders are terrific and if the fact of the murder being terrific is an adequate reason for imposing the death sentence, then every murder shall have to be visited with that sentence. In that event, death sentence will become the rule, not an exception and Section 354(3) will become a dead letter. In that event, death sentence will become the rule, not an exception and Section 354(3) will become a dead letter. We are also not satisfied that the learned Sessions Judge made any serious effort to elicit from the accused what he wanted to say on the question of sentence. All that the learned Judge says is that “when the accused was asked on the question of sentence, he did not say anything”. The obligation to hear the accused on the question of sentence which is imposed by Section 235(2) of the Criminal Procedure Code is not discharged by putting a formal question to the accused as to what he has to say on the question of sentence. The judge must make a genuine effort to elicit from the accused all information which will eventually bear on the question of sentence. All admissible evidence is before the judge but that evidence itself often furnishes a clue to the genesis of the crime and the motivation of the criminal. It is the bounden duty of the judge to cast aside the formalities of the court scene and approach the question of sentence from a broad, sociological point of view. The occasion to apply the provisions of Section 235(2) arises only after the conviction is recorded. What then remains is the question of sentence in which not merely the accused but the whole society has a stake. Questions which the judge can put to the accused under Section 235(2) and the answers which the accused makes to those questions are beyond the narrow constraints of the Evidence Act. The court, while on the question of sentence, is in an altogether different domain in which facts and factors which operate are of an entirely different order than those which come into play on the question of conviction. The Sessions Judge, in the instant case, complied with the form and letter of the obligation which Section 235(2) imposes, forgetting the spirit and substance of that obligation.” 75. Again, in the case of “Shakila Abdul Gafar Khan v. Vasant Raghunath Dhoble”, reported in (2003) 7 SCC 749 , the Hon’ble Supreme Court, while stressing the duty of the court to separate the grain from the chaff, has held as under, 25. ”It is the duty of the court to separate the grain from the chaff. Again, in the case of “Shakila Abdul Gafar Khan v. Vasant Raghunath Dhoble”, reported in (2003) 7 SCC 749 , the Hon’ble Supreme Court, while stressing the duty of the court to separate the grain from the chaff, has held as under, 25. ”It is the duty of the court to separate the grain from the chaff. Falsity of a particular material witness or a material particular would not ruin it from the beginning to end. The maxim “falsus in uno falsus in omnibus” has no application in India and the witnesses cannot be branded as liars. The maxim “falsus in uno falsus in omnibus” has not received general acceptance nor has this maxim come to occupy the status of rule of law. It is merely a rule of caution. All that it amounts to is that in such cases testimony may be disregarded, and not that it must be disregarded. The doctrine merely involves the question of weight of evidence which a court may apply in a given set of circumstances, but it is not what may be called “a mandatory rule of evidence”. 26. The doctrine is a dangerous one especially in India for if a whole body of the testimony were to be rejected, because the witness was evidently speaking an untruth in some aspect, it is to be feared that administration of criminal justice would come to a dead stop. Witnesses just cannot help in giving embroidery to a story, however true in the main. Therefore, it has to be appraised in each case as to what extent the evidence is worthy of acceptance, and merely because in some respects the court considers the same to be insufficient for placing reliance on the testimony of a witness, it does not necessarily follow as a matter of law that it must be disregarded in all respects as well. The evidence has to be sifted with care. The aforesaid dictum is not a sound rule for the reason that one hardly comes across a witness whose evidence does not contain a grain of untruth or at any rate an exaggeration, embroideries or embellishment. An attempt has to be made to, as noted above, in terms of felicitous metaphor, separate the grain from the chaff, truth from falsehood. The aforesaid dictum is not a sound rule for the reason that one hardly comes across a witness whose evidence does not contain a grain of untruth or at any rate an exaggeration, embroideries or embellishment. An attempt has to be made to, as noted above, in terms of felicitous metaphor, separate the grain from the chaff, truth from falsehood. Where it is not feasible to separate the truth from falsehood, because grain and chaff are inextricably mixed up, and in the process of separation an absolutely new case has to be reconstructed by divorcing essential details presented by the prosecution completely from the context and the background against which they are made, the only available course to be made is to discard the evidence in toto. As observed by this Court in State of Rajasthan v. Kalki [ (1981) 2 SCC 752 ] normal discrepancies in the evidence are those which are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence and those are always there, however honest and truthful a witness may be. Material discrepancies are those which are not normal, and not expected of a normal person. Courts have to label the category to which a discrepancy may be categorized. While normal discrepancies do not corrode the credibility of a party's case, material discrepancies do so. These aspects were highlighted recently in Krishna Mochi v. State of Bihar,[ (2002) 6 SCC 81 ] Gangadhar Behera v. State of Orissa,[ (2002) 8 SCC 381 ]and Rizan v. State of Chhattisgarh [(2002) 2 SCC 661]. 34. The courts 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 a tape recorder recording evidence, overlooking the object of trial i.e. to get at the truth, and 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 i.e. to render justice in a case where the role of the prosecuting agency itself is put in issue.” 76. It has a greater duty and responsibility i.e. to render justice in a case where the role of the prosecuting agency itself is put in issue.” 76. In the case of “Rajendra Prasad v. Narcotic Cell”, reported in (1999) 6 SCC 110 , the Hon’ble Supreme Court has summarized the function of criminal court as under, 8. “Lacuna in the prosecution must be understood as the inherent weakness or a latent wedge in the matrix of the prosecution case. The advantage of it should normally go to the accused in the trial of the case, but an oversight in the management of the prosecution cannot be treated as irreparable lacuna. No party in a trial can be foreclosed from correcting errors. If proper evidence was not adduced or a relevant material was not brought on record due to any inadvertence, the court should be magnanimous in permitting such mistakes to be rectified. After all, function of the criminal court is administration of criminal justice and not to count errors committed by the parties or to find out and declare who among the parties performed better.” 77. Again, in the case of “Zahira Habibullah Sheikh (5) v. State of Gujarat”, reported in (2006) 3 SCC 374 , the Hon’ble Supreme Court has stressed the role of the court in justice delivery system in these words, 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 rightminded people go away thinking: ‘The Judge was biased.’ ” (Per Lord Denning, M.R. in Metropolitan Properties Co. Ltd. v. Lannon, All ER p. 310 A.) The perception 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.)” 78. Ltd. v. Lannon, All ER p. 310 A.) The perception 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.)” 78. In the case of “A. Shanmugam v. Ariya Kshatriya Rajakula Vamsathu Madalaya Nandhavana Paripalanai Sangam”, reported in (2012) 6 SCC 430 , the Hon’ble Supreme Court has observed, “the entire journey of a Judge is to discern the truth from the pleadings, documents and arguments of the parties. Truth is the basis of the justice delivery system. 79. In the case of “Dalip Singh v. State of U.P.”, reported in (2010) 2 SCC 114 , the Hon’ble Supreme Court has observed that: “1. … Truth constituted an integral part of the justice delivery system which was in vogue in the preIndependence era and the people used to feel proud to tell the truth in the courts irrespective of the consequences. However, postIndependence period has seen drastic changes in our value system.” 80. In the case of “Maria Margarida Sequeira Fernandes v. Erasmo Jack De Sequeira”, reported in (2012) 5 SCC 370 , the Hon’ble Supreme Court has observed, 33. “The truth should be the guiding star in the entire judicial process. Truth alone has to be the foundation of justice. The entire judicial system has been created only to discern and find out the real truth. Judges at all levels have to seriously engage themselves in the journey of discovering the truth. That is their mandate, obligation and bounden duty. Justice system will acquire credibility only when people will be convinced that justice is based on the foundation of the truth.” It has been further observed by the Hon’ble Supreme Court in the case of “Maria Margarida Sequeria Fernandes” (supra), “A Judge in the Indian system has to be regarded as failing to exercise his jurisdiction and thereby discharging his judicial duty, if in the guise of remaining neutral, he opts to remain passive to the proceedings before him.” CONCLUSION: 81. The Investigating Officer, the Public Prosecutor and the Trial Court are three important pillars of the criminal justice system. Like three musketeers, they must strive to find out the truth, and protect the truth.