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2013 DIGILAW 289 (GAU)

Samaru Majhi v. State of Assam

2013-05-08

I.A.ANSARI, P.K.MUSAHARY

body2013
JUDGMENT Iqbal Ahmed Ansari, J. 1. This appeal is directed against the judgment and order, dated 27.06.2008, passed, in Sessions Case No. 03(M)/2008, by the learned Additional Sessions Judge No. 2(FTC), Tinsukia, convicting the accused-appellant under Section 302 IPC and sentencing him to suffer imprisonment for life and pay fine of Rs. 500/- and, in default of payment of fine, suffer rigorous imprisonment for a period of 3(three) months. The case of the prosecution, as unfolded at the trial, may, in brief, be described as under: (i) Accused, Samaru Majhi, used to live with his parents, his wife and two children. On 12.11.2007, at about 11 pm, on hearing commotion raised by accused Samaru Majhi's two children, his father, Rabilal Majhi (PW 1), hurriedly went out of his room and as he entered into the room of the accused, he saw the accused running away from the rear end of the house holding an axe in his hand and Asha, wife of the accused, lying on bed in injured state. On the following day, in the morning, PW 1 informed PW 4, who is their Gaonburha (i.e., village Headman), about the occurrence. On receiving the information, PW 4 asked PW 8, the VDP Secretary, to inform police and PW 8 (VDP Secretary) informed, on telephone, Digboi Police Station about the occurrence, whereupon police arrived at the place of occurrence. On arrival of the police, the accused came out from bamboo grove holding an axe in his hand and handed over the axe (Mat. Ext. 1) to the police, which was seized by a Seizure List (Ext 1). Police held inquest over the said dead body and prepared inquest report. The said dead body was also subjected to post mortem examination. (ii) When investigation into the case was in progress, PW 1, father of the accused, lodged an Ejahar. Treating the said Ejahar as First Information Report (in short, FIR), Digboi Police Station Case No. 218/2007, under Section 302 IPC, was registered against the accused and, on completion of investigation, police laid charge-sheet, under Section 302 IPC, against the accused. 2. At the trial, when a charge, under Section 302 IPC, was framed, the accused pleaded not guilty thereto. 3. In support of their case, prosecution examined altogether 8(eight) witnesses. 2. At the trial, when a charge, under Section 302 IPC, was framed, the accused pleaded not guilty thereto. 3. In support of their case, prosecution examined altogether 8(eight) witnesses. The accused was, then, examined under Section 313 Cr.P.C. and, in his examination aforementioned, the accused took the plea that his wife had illicit relation with another person and, on the question of her said illicit relationship, a quarrel took place between them and following the quarrel, he (accused) happened to kill his wife. No evidence was adduced by the defence. 4. Having found the accused guilty of the offence, which he stood charged with, the learned trial Court convicted him accordingly and passed sentence against him as mentioned above. Aggrieved by his conviction and the sentence passed against him, the accused, as a convicted person, has preferred this appeal. 5. We have heard Mr. K. Goswami, learned Amicus Curiae, and Ms. S. Jahan, learned Additional Public Prosecutor, Assam. 6. While considering the present appeal, what attracts our attention, most prominently, is that in the case at hand, though Ext. 1 was treated as the FIR, a careful reading of the evidence on record shows that the police moved into action on the basis of the telephonic information received, at Digboi Police Station, from PW 8 and, if so, then, the information, which had been received by the police, ought to have been proved by the prosecution, and, in this regard, since there was omission, on the part of the prosecution, to produce requisite evidence, it was the duty of the learned trial Court to bring on record the exact information, which had been conveyed by PW 8 to Digboi Police Station, which brought the police, in the light of the evidence of PW 8, to the place of occurrence. 7. 7. Coupled with the above, and more importantly, PW 1, father of the accused, has given evidence to the effect that on the night of the occurrence, he woke up on hearing a commotion raised by accused Samaru Majhi's two children and when he (PW 1) went to the room of the accused, he saw the accused running away towards the rear of the house with an axe in his hand and Asha, wife of the accused, lying, on the bed, in injured state and that on the following day morning, he (PW 1) informed the Gaonburha (PW 4) about the occurrence and, thereafter, he lodged the Ejahar. 8. What is important to note, in the evidence of PW 1, is that in his cross-examination he has deposed as under: My daughter-in-law had been having an illicit affair with another person. That man had come that day. Out of anger over that this incident was caused. That day my son (accused) had seen that illicit affair. Because of that he caused the incident. I did not myself see the accused killing my daughter-in-law. I have told his name on suspicion. The police wrote the ejahar and obtained my T.I. thereon. My daughter-in-law had illicit relationship with Gabbar Singh, a neighbour of ours. This Gabbar Singh is our relation. 9. From the evidence, given by PW 1 and reproduced above, it is not discernible as to how PW 1 had come to know that his daughter-in-law, i.e., the wife of the accused, had illicit relationship with their neighbour and relative, Gabbar Singh. It is also not discernible from the above evidence of PW 1 as to how he had come to know that Gabbar Singh had come, on the night of the occurrence, to the house of the accused, which led to the quarrel. 10. From a reading of the evidence of PW 1, as given in his examination-in-chief, there is nothing to show that he was a witness to the quarrel, which took place between his son, i.e., the accused, and his daughter-in-law, i.e., the wife of the accused. Far from this, PW 1 woke up, according to the evidence given by PW 1 himself, on hearing commotion, which had been raised by the two children of the accused. 11. Far from this, PW 1 woke up, according to the evidence given by PW 1 himself, on hearing commotion, which had been raised by the two children of the accused. 11. In the circumstances, indicated above, it was incumbent, on the part of the learned trial Court, to elicit from PW 1 as to how he had come to know that Gabbar Singh had come to the house of the accused on the night of the occurrence and it was on the arrival of said Gabbar Singh that a quarrel had taken place between the accused and his wife leading, eventually, to the causing of death of the wife of the accused. The learned trial Court appears to have recorded the evidence mechanically and without any application of mind. 12. What is, now, of utmost importance to note is that a trial Judge is not merely a recording machine of evidence given by the witnesses nor can he be a silent spectator to the evidence produced by the parties. Though a trial Judge must not drop the mantle of a Judge and assume the role of a prosecutor or a defence counsel, the fact remains that his duty is to reach the truth and Section 165 of the Evidence Act gives the Judge adequate power and authority to put any question to any witness at any time be it during the course of examination-in-chief or cross-examination or at the end of any such examination or re-examination-which, to the Judge, appears to be necessary for a just decision of the case and in order to discover or obtain proof of relevant fact. Though a Judge must not usurp the function of a counsel, he needs to participate, in the trial, in such a manner as would ensure that the evidence, adduced by the parties, is legal and such evidence becomes clear, complete and intelligible. A Judge, who merely sits at a trial and records evidence without caring to conduct examination of the witnesses in order to ensure that evidence on record becomes intelligible, must be held to have not performed his duty as warranted by law. A Judge is not merely an observer. It is his duty to explore, within permissible limits, the truth. A Judge, who merely sits at a trial and records evidence without caring to conduct examination of the witnesses in order to ensure that evidence on record becomes intelligible, must be held to have not performed his duty as warranted by law. A Judge is not merely an observer. It is his duty to explore, within permissible limits, the truth. If, therefore, a Judge finds that the examination of a witness is not being conducted in such a way as to unfold complete truth, it is not only right for the Judge, but his duty to intervene and put such questions as may be warranted and permissible within the ambit of Section 165. A Judge cannot behave like a passive agent, when a case is tried before him. He has the power and also the duty to question the witnesses in order to elicit relevant materials. A case cannot be allowed to suffer for failure of any of the parties to elicit relevant materials from a witness. It is to discover the truth and bring, on record, the relevant facts that a Judge has been vested with the power to put questions under Section 165. It is with this object in view that the Judge has been vested with the power to call any witness or recall any witness at any time suo moto or at the instance of any of the parties if it becomes necessary for a just decision of the case. If the prosecution omits to bring out any relevant fact or the defence elicits from a witness, in the cross-examination a statement, which is obscure or incomplete, the defence does not acquire (the Judge must bear in mind) a vested right in such limited cross-examination. It is the duty of the Judge to remove such obscurity or incompleteness by putting appropriate question. In such a case, it is, rather, the duty of the Judge, conducting the trial, to elicit from the witness complete information so that the evidence given by him or her becomes clear and intelligible, though his putting of questions cannot be in a manner as if the witness is under cross-examination nor can such examination be aimed at destroying or diluting the effect of the cross-examination of the witness by the defence. It is for this reason that a Court shall not put, in exercise of its powers under Section 165, leading question or put words into the mouth of the witness. 13. In the present case, the evidence, which has been obtained by the defence by cross-examining PW 1 is not really intelligible and is wholly vague inasmuch as it is not clear from the evidence, given in the cross-examination by PW 1, how he had come to know that his son had seen his wife having illicit affair with his neighbour on the night of the occurrence and how he had learnt that it was this incident, which had led to the quarrel between the accused-appellant and his wife. 14. It appears to have escaped attention of the learned trial Court that it is empowered, under Section 165 of the Evidence Act, to put any question to any witness at any stage of the trial. This apart, the trial Court is also empowered by Section 311 Cr.P.C. to call or recall a witness. Though a trial Court is not permitted to cross-examine a witness, it remains nevertheless the duty of the trial Court to ensure that whatever evidence comes on record becomes understandable by a person, who reads the evidence. 15. Because of the infirmities with which trial of the accused has suffered from, we are clearly of the view that conviction of the accused-appellant and the sentence, which has been passed in consequence thereto, cannot be sustained. 16. We, therefore, allow this appeal in part. We accordingly set aside the conviction and sentence passed against the accused-appellant by the judgment and order, under appeal, and remand the case to the learned trial Court with direction to recall PW 1 and put to him appropriate question(s) as may be permissible in law so as to make his evidence, given in the cross-examination, understandable and intelligible and, then, dispose of the case in accordance with law by recalling, if necessary, the Officer-in-Charge, Digboi Police Station, with the relevant GD. Entry so that the information, which was received, first in point of time, by the police with regard to the occurrence, can be brought on record and help the Court in disposing of the case effectively and in accordance with law. 17. Entry so that the information, which was received, first in point of time, by the police with regard to the occurrence, can be brought on record and help the Court in disposing of the case effectively and in accordance with law. 17. Notwithstanding the fact that we have set aside the conviction and sentence of the accused-appellant, we direct that the accused-appellant shall not be released on bail and shall be kept in imprisonment wherever he may be and the decision, with regard to his liberty on bail or otherwise, shall be taken up by the learned trial Court on conclusion of the trial and depending upon the finding, which the learned trial Court may reach. 18. It is further directed that the learned trial Court shall deal with the case expeditiously and dispose of the same in accordance with law, preferably, within a period of three months from the date of receipt of the LCR. 19. With the above observations and directions, this appeal shall stand disposed of. 20. Send back the LCR along with a copy of this judgment and order. Let the learned amicus curiae be paid a sum of Rs. 5,000/- for his valuable assistance rendered to the Court.