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2013 DIGILAW 73 (GAU)

Bolin Bora v. State of Assam

2013-02-04

I.A.ANSARI, P.K.MUSAHARY

body2013
JUDGMENT Iqbal Ahmed Ansari, J. 1. Aggrieved by the judgment and order, dated 31.08.2007, passed, in Sessions Case No. 170 of 2005, by the learned Additional Sessions Judge, FTC, Dibrugarh, convicting him under Sections 498A and 304B IPC and sentencing him to suffer, for his conviction under Section 498A IPC, rigorous imprisonment for two years and pay fine of rupees one thousand and, in default of payment of fine, suffer rigorous imprisonment for a further period of two months and also sentencing him to suffer, for his conviction under Section 304B IPC, imprisonment for life, with direction that both the sentences shall run together, the accused, Bolin Bora, has, as a convicted person, preferred this appeal. The case of the prosecution, as unfolded at the trial, may, in brief, be described as under: (i) Deceased, Pompi Bora, was wife of accused Bolin Bora, who used to live with Pompi Bora (since deceased) at the residential quarter of his father, Indrajit Bora, situated at Police Reserve, Dibrugarh. Accused, Bolin Bora, demanded a sum of Rs. 50,000/- from Pompi's parents and as Pompi's parents, being poor, could not meet the demand, which had been so raised by accused Bolin Bora, accused Bolin Bora, on 28.10.2004, at about 2 pm, poured kerosene on Pompi and set her on fire. With the burn injuries, so sustained by Pompi, she was carried by accused Bolin Bora to Health Line Hospital, Dibrugarh. She was, then, shifted to, and treated at, Astha Hospital, Dibrugarh. At a latter stage, Pompi was moved to, and treated at, Assam Medical College and Hospital, Dibrugarh (in short, AMCH). While Pompi was under treatment at Health Line Hospital, Dibrugarh, an information, in writing, was given to the Officer-in-Charge, Dibrugarh Police Station, by the Manager, Health Line Hospital, Dibrugarh, that Pompi had been admitted, on 28.10.2004, with burn injury and that the management of the hospital had been informed that the burn was caused, because of bursting of a stove. While Pompi was under treatment at Health Line Hospital, Dibrugarh, an information, in writing, was given to the Officer-in-Charge, Dibrugarh Police Station, by the Manager, Health Line Hospital, Dibrugarh, that Pompi had been admitted, on 28.10.2004, with burn injury and that the management of the hospital had been informed that the burn was caused, because of bursting of a stove. (ii) On receiving the information, so given by the management of Health Line Hospital, Dibrugarh, a direction was given by Officer-in-Charge, Dibrugarh Police Station, to Sub-Inspector of Police, Jogendra Nath Saikia, to make enquiry, whereupon Sub Inspector of Police, Jogendra Nath Saikia (hereinafter referred to as the Investigating Officer), having made enquiry and also having recorded the statement of injured Pompi, lodged a written information (Ext.2) with the Officer-in-Charge, Dibrugarh Police Station, to the effect, inter alia, that Pompi had been subjected by accused Bolin Bora to cruelty, both physically and mentally, for one reason or another since the time of her marriage with the accused and, at last, on 28.10.2004, at around 2 pm, he had set fire to her body in a pre-planned manner with intention to kill her. (iii) Treating the information, which had been so lodged by the Investigating Officer, S.I. Jogendra Nath Saikia, as the First Information Report (in short, 'FIR'), Dibrugarh Police Station Case No. 566/2004, under Sections 498A/307/109/34 IPC, was registered against accused Bolin Bora and his parents. During (In) the course of investigation, Pompi's statement was recorded not only by the Investigating Officer, but also by the doctor and an Executive Magistrate. While remaining under treatment, at AMCH, Dibrugarh, Pompi succumbed to the burn injuries on 16.12.2004. Inquest was, then, held over her dead body and inquest report (Ext.4) was prepared. On completion of investigation, a charge-sheet (Ext. 3) was lodged, under Sections 498A/304B/109/34 IPC, against accused Bolin Bora and both his parents, Indrajit Bora and Minu Bora. 2. At the trial, when charges, under Sections 498A and 304B read with Section 34 IPC, were framed against the three accused, namely, Bolin Bora, Indrajit Bora and Minu Bora, they all pleaded not guilty thereto. 3. In support of their case, prosecution examined altogether 12 (twelve) witnesses including the Investigating Officer. 2. At the trial, when charges, under Sections 498A and 304B read with Section 34 IPC, were framed against the three accused, namely, Bolin Bora, Indrajit Bora and Minu Bora, they all pleaded not guilty thereto. 3. In support of their case, prosecution examined altogether 12 (twelve) witnesses including the Investigating Officer. The three accused were, then, examined under Section 313 Cr.P.C. In their examinations aforementioned, all the accused denied that they had committed the offences, which were alleged to have been committed by them, the case of the defence being that all the accused were innocent and that Pompi had herself poured kerosene on her person and set herself on fire. No evidence was adduced by the defence. 4. Having found the evidence on record not adequate to warrant conviction of the parents of accused Bolin Bora, the learned trial Court acquitted both the parents of accused Bolin Bora of the charges, which had been framed against them. The learned trial Court, however, having found accused Bolin Bora guilty of the offences, with which he stood charged with, convicted him accordingly under Sections 498A and 304B IPC and passed sentences against him as mentioned above. Aggrieved by his conviction and the sentences, which have been passed against him, accused Bolin Bora, as the convicted person, has preferred this appeal. 5. We have heard Mr. A.K. Bhattacharjee, learned Senior counsel, for the appellant, and Mr. K.A. Mazumdar, learned Additional Public Prosecutor, Assam. 6. While considering the present appeal, it needs to be noted that the information, given by the Manager, Health Line Hospital, Dibrugarh to the Officer in Charge, Dibrugarh Police Station, led to an inquiry and, in the course of inquiry, the statement of Pompi Bora was recorded. On the basis of information gathered from the statement, the Inquiring Police Officer, namely, Jogendra Nath Saikia, a Sub-Inspector of Police, lodged the FIR, which is Ext 2. It, therefore, becomes necessary to clear the doubt as to which of the information, the one, given by the Manager of the Hospital, or the one lodged by the Inquiry Officer, shall be treated as FIR. 7. A similar question arose in the case of Dhananjoy Chatterjee Vs. State of West Bengal reported in 1994 SCC (2) 220, wherein the Court was required to decide the source of first information. The relevant observations, made in Dhananjoy Chatterjee (supra), read as under: 8. 7. A similar question arose in the case of Dhananjoy Chatterjee Vs. State of West Bengal reported in 1994 SCC (2) 220, wherein the Court was required to decide the source of first information. The relevant observations, made in Dhananjoy Chatterjee (supra), read as under: 8. Before we proceed to consider various circumstances, we would like 'to deal with one finding of the High Court relating to the first information report. The High Court found that after the telephonic message had been sent to the police station, and the investigating officer after making an entry in the GD rushed to the scene of occurrence to record the statement of Yashmoti PW 3, that statement of PW 3 could not be treated as a first information report and that the "telephonic message as recorded in the GD" was the first information report and the statement of PW 3 was only a statement recorded during the investigation of the case and not the FIR. In the words of the High Court: We are therefore, of the opinion that the statement of PW 3 recorded by the Police after the investigation had already commenced could not be treated as the first information report. 9. We are unable to agree with the opinion of the High Court. The cryptic telephonic message received at the police station from Nagardas PW 4 had only made the police agency to rush to the place of occurrence and record the statement of Yashmoti PW 3 and thereafter commence the investigation as was admitted by the investigating officer in his testimony which testimony was not challenged during the cross-examination of the investigating officer. The High Court failed to notice that the vague and indefinite information given on the telephone which made the investigating agency only to rush to the scene of occurrence could not be treated as a first information report under Section 154 of the Cr.P.C. The unchallenged statement of the investigating officer that he commenced the investigation only after recording the statement of PW 3 Yashmoti unmistakably show, that it was that statement which alone could be treated as the first information report. The High Court fell in error in observing that the statement of PW 3 Yashmoti was recorded "after the investigation had already commenced". There is no material on the record for the above opinion of the High Court. The High Court fell in error in observing that the statement of PW 3 Yashmoti was recorded "after the investigation had already commenced". There is no material on the record for the above opinion of the High Court. The cryptic telephonic message given to the police by Nagardas PW 4 was only with the object of informing the police so that it could reach the spot. The investigation in the case only started after the statement of PW 3 Yashmoti was recorded. Though initially Mr Ganguli did try to support the finding of the High Court but in the face of the evidence on the record and more particularly in the absence of any challenge to the testimony of the investigating officer, in fairness to Mr. Ganguli, we must record that he rightly did not pursue that argument any further. We, therefore, find ourselves unable to agree with the opinion of the High Court and hold that the statement of Yashmoti PW 3, recorded by the investigating officer PW 28, was rightly treated as FIR in this case by the prosecution and the trial court. (Emphasis is supplied) 8. What can be deduced from the above observations, made in Dhananjoy Chatterjee (supra), is that information to the Police to attend to a particular situation cannot be treated as an FIR; rather, it is the information, which discloses the commission of a cognizable offence, triggering a process of collection of evidence and/or other facts to ascertain the veracity of such information, which can be treated as an FIR. Section 154 of the Code of Criminal Procedure also begins with the expression, every information relating to the commission of cognizable offence, meaning thereby that the information, furnished to the Officer in Charge of a police station, must disclose commission of a cognizable offence so as to treat the information as FIR laying down the foundation for a criminal investigation. Viewed from this perspective, the letter, written by the Manager of the Hospital, merely provided information that a lady had been undergoing treatment there for burn injuries sustained by the bursting of stove. This information did not give rise to the commission of any cognizable offence; hence, an inquiry was ordered by the Officer-in-Charge. Viewed from this perspective, the letter, written by the Manager of the Hospital, merely provided information that a lady had been undergoing treatment there for burn injuries sustained by the bursting of stove. This information did not give rise to the commission of any cognizable offence; hence, an inquiry was ordered by the Officer-in-Charge. In the course of inquiry, however, the statement of the deceased was recorded and this statement gave rise to the information, as contained in Ext.2, which Sub-Inspector, Jogendra Nath Saikia, lodged, at his Police Station, relating to alleged commission of a cognizable offence. Hence, the information, given to the Officer-in-Charge, in the form of Ext 2, has to be treated as the FIR. In other words, the investigation into the guilt of the accused persons, named in Ext.2, commenced only after the receipt of Ext 2, which was an information, in writing, relating to alleged commission of a cognizable offence by the accused named therein. Ext.2 is, therefore, the FIR. 9. Coupled with the above, one must also bear in mind, in the context of the facts of the present case, that Section 304B IPC not only defines what shall be called as 'dowry death', but also prescribes punishment for a person, who commits 'dowry death'. 10. A careful reading of Section 304B(1) IPC, which defines 'dowry death', clearly shows that in order to become 'dowry death', death of the woman concerned must be proved to have been caused by burns or bodily injury or her death must have occurred otherwise than under normal circumstances within seven years of her marriage and that it must also be shown that soon before her death, the woman concerned had been subjected to cruelty or harassment by her husband or by any relative of her husband for, or in connection with, any demand for dowry, such death shall be called 'dowry death' and such husband or relative, as the case may be, shall be deemed to have caused the death of the woman. 11. 11. Thus, Section 304B(1) IPC warrants a legal presumption to be drawn against a person of having caused 'dowry death' if the death of the woman is caused by any bum or bodily injury or if her death is proved to have occurred otherwise than under normal circumstances within seven years of her marriage and that it must also be shown that soon before her death, the woman had been subjected to cruelty or harassment by her husband or by any relative of her husband for, or in connection with, any demand for dowry, such death shall be called 'dowry death' and such husband or relative, as the case may be, shall be deemed to have caused the death of the woman. 12. In short, thus, apart from the fact that the death of the woman has to be caused by burn injury or bodily injury or she must have died under circumstances, otherwise than normal, and such a death must have occurred within seven years of her marriage and the woman must be shown to have, soon before hear death, subjected to cruelty or harassment by her husband or by any relative of her husband for, or in connection with, any demand for dowry. 13. In the present case, Pompi, admittedly, died, because of the burn injuries suffered by her within a period of seven years of her marriage. Thus, apart of the ingredients of 'dowry death', as embodied in Section 304B(1) IPC, stands satisfied. It was, however, incumbent, on the part of the prosecution, to show that soon before her death, Pompi was subjected to cruelty or harassment by the accused-appellant, who was her husband, for, or in connection with, any demand for dowry. 14. It is noteworthy that it clearly surfaces from the evidence on record that the Investigating Officer claims to have recorded Pompi's statement, while she was lying under treatment for having suffered burn injuries. As Pompi died subsequent to the making of her statement to the Investigating Officer, her said statement, if recorded by the Investigating Officer, was, undoubtedly, a 'dying declaration' and ought to have been brought on record by the prosecution. Similarly, Pompi's statement is claimed to have been recorded by the doctor and also by an Executive Magistrate. As Pompi died subsequent to the making of her statement to the Investigating Officer, her said statement, if recorded by the Investigating Officer, was, undoubtedly, a 'dying declaration' and ought to have been brought on record by the prosecution. Similarly, Pompi's statement is claimed to have been recorded by the doctor and also by an Executive Magistrate. While her statement, claimed to have been made to the doctor, at Astha Hospital, Dibrugarh, has been proved as Ext.1, her statement, which was claimed to have been recorded by the Executive Magistrate, has not been brought on record even though the statement, if made by Pompi to the Executive Magistrate describing as to how she had sustained burn injuries on her person, became her 'dying declaration' and the same ought to have been brought on record of the case by the prosecution. 15. Thus, there were, according to the evidence on record, as many as three 'dying declarations', which are claimed to have been recorded. This apart, there is allegedly one more 'dying declaration' and this comes out from the evidence of PW1, whose evidence is to the effect that Pompi had told her that she had herself set fire to her body by pouring kerosene. This assertion of PW1 would, if true, amount to commission of suicide by Pompi. 16. Be that as it may, there are, at least, three 'dying declarations', which prosecution claims to have been recorded. The prosecution has, however, brought on record only one 'dying declaration', namely, Pompi's statement, which is claimed to have been recorded, at Astha Hospital, by the doctor, wherein she is claimed to have stated that it was her husband (i.e., the accused-appellant), who had thrown kerosene on her from her backside and set fire. The other two 'dying declarations', one, which was claimed to have been recorded by the Investigating Officer, and the other, which was claimed to have been recorded by the Executive Magistrate, have not been brought and proved on record, though both these 'dying declarations', too, ought to have been brought on record inasmuch as it was the duty of the prosecution to place all the material facts before the Court in order to enable the Court reach the whole of the truth. 17. 17. Is the omission to bring on record the 'dying declarations', which are claimed to have been recorded by the Investigating Officer and the Executive Magistrate, lacuna in the prosecution's case, which cannot be not allowed to be filled up or is it a defect in the management of the case? 18. While considering the question, posed above, one must bear in mind that a lacuna, in the prosecution's case, shall not be equated with the fallout of an oversight, which a prosecutor may have committed, at the trial, either in producing relevant materials or in eliciting relevant answer from the witness(es). A human being, be he a prosecutor or a defence counsel, may commit mistake. Logically extended, it would mean that laches or mistakes, while conducting a trial, cannot be understood as lacunae. In fact, lacunae, in the prosecution's case, must be clearly understood to be a inherent weakness or a latent wedge in the matrix of a prosecution's case. Though the advantage of the lapse, on the part of the prosecution, should, ordinarily, go in favour of the defence, an oversight, in the management of the prosecution, cannot be treated as irreparable lacuna. Nobody can be denied the right to correct the errors committed in a trial unless it is shown that prejudice would be caused if the error is allowed to be corrected. 19. With regard to the above, it must be uppermost in the mind of a Judge that if appropriate evidence is not adduced, or relevant material is not brought on record, due to inadvertence of the counsel, the Court shall not foreclose the right of the party to correct the errors, for, Courts are required to do justice and not to count errors committed by the parties or to find out as to who, amongst the parties, performed better. Explaining as to what can be regarded as a lacuna in a prosecution's case, the Supreme Court, in Rajendra Prasad Vs. Narcotic Cell, reported in (1999) 6 SCC 110 , observed: 7. It is a common experience in criminal courts that defence counsel would raise objections whenever courts exercise powers under Section 311 of the Code of under Section 165 of the Evidence Act, 1872 by saying that the court could not "fill the lacuna in the prosecution case". Narcotic Cell, reported in (1999) 6 SCC 110 , observed: 7. It is a common experience in criminal courts that defence counsel would raise objections whenever courts exercise powers under Section 311 of the Code of under Section 165 of the Evidence Act, 1872 by saying that the court could not "fill the lacuna in the prosecution case". A lacuna in the prosecution is not to be equated with the fallout of an oversight committed by a Public Prosecutor during trial, either in producing relevant materials or in eliciting relevant answers from witnesses. The adage "to err is human" is the recognition of the possibility of making mistakes to which humans are phone. A corollary of any such laches or mistakes during the conducting of a case cannot be understood as a lacuna which a court cannot fill up. 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. 9. The very same decision Mohanlal Shamji Soni Vs. Union of India 1 which cautioned against filling up lacuna has also laid down the ratio thus: (AIR Head-note) "it is therefore clear that the criminal court has ample power to summon any person as a witness or recall and re-examine any such person even if the evidence on both sides is closed and the jurisdiction of the court must obviously be dictated by exigency of the situation, and fair play and good sense appear to be the only safe guides and that only the requirements of justice command the examination of any person which would depend on the facts and circumstances of each case. " 10. " 10. Dealing with the corresponding section in the old Code (Section 540) Hidayatullah, J. (as the learned Chief Justice then was) speaking for a three-Judge Bench of this Court had said in Jamatraj Kewalji Govani Vs. State of Maharashtra 2 as follows: "it would appear that in our criminal jurisdiction, statutory law confers a power in absolute terms to be exercised at any stage of the trial to summon a witness or examine one present in court or to recall a witness already examined, and makes this the duty and obligation of the court provided the just decision of the case demands it. In other words, where the court exercises the power under the second part, the enquiry cannot be whether the accused has brought anything suddenly or unexpectedly but whether the court is right in thinking that the new evidence is needed by it for a just decision of the case." 11. Chinhappa Reddy, J. has also observed in the same tone in Ram Chander Vs. State of Haryana. 12. We cannot therefore accept the contention of the appellant as a legal proposition that the court cannot exercise power of resummoning any witness if once that power was exercised, nor can the power be whittled down merely on the ground that the prosecution discovered laches only when the defence highlighted them during final arguments. The power of the court is plenary to summon or even recall any witness at any stage of the case if the court considers it necessary for a just decision. The steps which the trial court permitted in this case for resummoning certain witnesses cannot therefore be spurned down or frowned at. (Emphasis is supplied) 20. From the observations made in Rajendra Prasad's case (supra), it clearly transpires that a lacuna, in the case of prosecution or defence, would mean an inherent weakness of the case and not accidental slip or omission nor does lacuna mean patent wedge, but a latent wedge. An oversight or inefficiency in the management of a case is not a lacuna. In this regard, it also becomes necessary to redefine the role of a Prosecutor in a criminal trial. 21. The role of a Prosecutor in a Court of law is to place all the necessary facts before the Court to ensure utmost fairness in prosecution. It is not the duty of the Prosecution to ensure conviction. In this regard, it also becomes necessary to redefine the role of a Prosecutor in a criminal trial. 21. The role of a Prosecutor in a Court of law is to place all the necessary facts before the Court to ensure utmost fairness in prosecution. It is not the duty of the Prosecution to ensure conviction. The quest in the Court of law is only for truth as far as possible and all the Officers of Court, be it the Judge, the Prosecutor or the Defence Counsel, must strive for bringing out the truth irrespective of the consideration whether the truth will result in acquittal or conviction. 22. In this regard the relevant observations made in the case of Rana Sinha @ Sujit Sinha Vs. The State of Tripura, reported in 2011 (2) GLT 610, may be gainfully quoted here in order to understand the role of a prosecutor, which read as under: 176............The legislature reminds the State that the prosecution of every accused must strictly conform to fairness of a criminal trial. 177. As indicated above, a Public Prosecutor's role is not to ensure conviction of an accused, irrespective of the facts involved in the case. The attitude of the Public Prosecutor, who conducts prosecution, shall be fair not only to the court and to the investigating agencies, but to the accused as well. If an accused is entitled to any legitimate benefit during trial, the Public Prosecutor should not scuttle or conceal it. On the contrary, it is the duty of the Public Prosecutor to help the Court reach the truth. 178. As mentioned above, even when a defence counsel overlooks a material aspect of a case, which may help in uncovering the truth and in arriving at a just decision of the case, the Public Prosecutor has the added obligation to bring to the notice of the Court such an aspect of the case. 179. Agreed the Supreme Court with the observations of a Division Bench of the High Court of Andhra Pradesh, in Medicheetty Ramakistiah and Ors. v. The State of Andhra Pradesh AIR 1959 AP 659 , which read, "A prosecution, to use a familiar phrase, ought not to be a persecution. 179. Agreed the Supreme Court with the observations of a Division Bench of the High Court of Andhra Pradesh, in Medicheetty Ramakistiah and Ors. v. The State of Andhra Pradesh AIR 1959 AP 659 , which read, "A prosecution, to use a familiar phrase, ought not to be a persecution. The principle that the Public Prosecutor should be scrupulously fair to the accused and present his case with detachment and without evincing any anxiety to secure a conviction, is based upon high policy and as such courts should be astute to suffer no inroad upon its integrity. Otherwise there will be no guarantee that the trial will be as fair to the accused as a criminal trial ought to be. The State and the Public Prosecutor acting for it are only supposed to be putting all the facts of the case before the Court to obtain its decision thereon and not to obtain a conviction by any means fair or foul. Therefore, it is right and proper that courts should be zealous to see that the prosecution of an offender is not handed over completely to a professional gentleman instructed by a private party. 180. From the observations made above, it becomes clear that a Public Prosecutor is required to deal with a case with utmost detachment and should not exhibit the intention to secure, by hook or crook, conviction of the accused. Under our criminal jurisprudence, this is one of the essential features of a fair trial. 23. In the case at hand, the prosecution's failure to bring on record the 'dying declarations', which have been claimed to have been recorded by the Investigating Officer and the Executive Magistrate, though cannot be regarded as an inherent defect of the case or lacuna of the case, but there appears a failure in properly managing the case or conducting the trial and as a result thereof the Prosecutor failed to bring the important relevant facts before the Court for a just decision. In the commission of this error, the learned trial Judge was as much responsible as the learned Prosecutor. 24. In the commission of this error, the learned trial Judge was as much responsible as the learned Prosecutor. 24. In fact, when the Prosecutor had omitted, inadvertently or advertently, from bringing the said two alleged 'dying declarations' on record, the learned trial Judge ought to have been alive to the situation and ought to have directed, pursuant to the powers vested in him by Section 165 of the Evidence Act, read with Section 311 Cr.P.C., to bring the said two remaining alleged 'dying declarations' on record so that full facts and materials were available on record in order to enable him to do justice by coming to a correct conclusion in the light of the relevant materials. 25. It may also be pointed out that Section 311 Cr.P.C., which empowers a Judge, in a criminal trial, to call or re-call a witness is one of the facets of his powers under Section 165 of the Evidence Act and the Judge must ensure that he has done what is necessitated for a just decision of the given case bearing, of course, in his mind the recognized limitations within which the power has to be exercised. 26. In fact, emphasizing what role a Judge should play in a trial, the Supreme Court, in Shakila Abdul Gafar Khan Vs. Vasant Raghunath Dhoble, reported in (2003) 7 SCC 749 , observed: 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. (Emphasis is supplied) 27. From the position of law laid down in Shakila Abdul Gafar Khan (supra), it becomes transparent that a Court is not a tape recorder, which has to merely record evidence. Far from this, when the Court's object is to do justice, it cannot overlook the necessity to reach the truth. (Emphasis is supplied) 27. From the position of law laid down in Shakila Abdul Gafar Khan (supra), it becomes transparent that a Court is not a tape recorder, which has to merely record evidence. Far from this, when the Court's object is to do justice, it cannot overlook the necessity to reach the truth. Hence, while a Court cannot assume the role of a party to a case, it nevertheless has the duty to remove vagueness or obscurity from a witness's evidence so that the evidence becomes intelligible to a Court of law. 28. The judicial principles regarding the proactive role of Judge, as laid down in the case of Shakila Abdul Gafar Khan (supra) and in Rajendra Prasad (supra) have been invoked in the case of Pabitra Kumar Das Vs. State of Assam, reported in 2008 (Suppl) GLT 589, as well in the case of Haren Chandra Sarma Vs. State of Assam, reported in 2008 GLT 482. The Court, while examining the scope of section 311 CrPC, held as follows: 10. Bearing in mind the ingredients of the offence under Section 494, IPC, let me, now, turn to the scope of Section 311, Code of Criminal Procedure, its aims and objectives. For the purpose of a clear understanding of what Section 311 aims at conveying, appropriate it is that the provisions, embodied in Section 311, are carefully, taken note of Section 311 is, therefore, reproduced hereinbelow- 311. Power to summon material witness, or examine person present: Any court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined; and the court shall summon and examine or recall and re-examine any such person if his evidence appears to be essential to the just decision of the case. 11. A patient reading of the Section 311, Code of Criminal Procedure, clearly shows that this Section is divided into two parts. 11. A patient reading of the Section 311, Code of Criminal Procedure, clearly shows that this Section is divided into two parts. While the word, used in the first part, is, "may", the word used, in the second part, is, "shall", it would, therefore, logically follow that the first part of Section 311, Code of Criminal Procedure is permissive in nature and gives a discretion to a criminal court to act, at any stage, of enquiry, trial or other proceeding, in one of the three ways, namely, (1) to summon any person as a witness, or (2) to examine any person in attendance, though not summoned as a witness, or (3) to recall and re-examine any person already examined. 12. The second part of Section 311 is, however, mandatory in nature and casts an obligation on the court (i) to summon and examine or (ii) to recall and re-examine any such person if his evidence appears to be essential to the just decision of the case. 13. The language, employed in Section 311, clearly shows that this Section is couched in widest possible terms and do not limit the discretion of the court in any manner. However, the wider the power, more cautious shall be the exercise thereof. No exercise of power, in a judicial proceeding, can be arbitrary and, more so, the power to call or recall a witness. Whereas the first part of Section 311, as already indicated above, gives a discretion to the court to call, recall and re-examine any person as a witness, the second part of this section does not really give any discretion to the court; rather, it clarifies that if a court forms the view, in the facts of a given case, that the evidence of the person, who is sought to be called, recalled or reexamined, is essential to the just decision of the case, it would be mandatory for the court to call, re-call or re-examine a person as a witness. This mandatory exercise of power can also be to obtain fresh evidence provided that the court forms a view, as indicated hereinbefore, that bringing of such fresh evidence on record is essential to the just decision of the case. 14. This mandatory exercise of power can also be to obtain fresh evidence provided that the court forms a view, as indicated hereinbefore, that bringing of such fresh evidence on record is essential to the just decision of the case. 14. Though the law requires the parties to produce, before the court, the best available evidence, the fact remains that even in a criminal trial, prosecution as well as defence has the right to choose their witness or witnesses and also as to what evidence they would adduce. Nonetheless, they are bound to adduce the best available evidence. The court has no power to compel either the prosecution or the defence to examine any particular witness. This embargo placed on the powers of the court, i.e., the limitation of not directing either the prosecution or the defence to examine any particular witness as their witness, is sought to be balanced by the Legislature with the help of the provisions contained in Section 311 inasmuch as the Legislature has, with the help of Section 311, empowered the criminal court to call, recall or reexamine any person as witness. The only rider, which Section 311 attaches to the exercise of this power, is that a criminal court cannot call, recall or re-examine any person as witness, unless examination of such a person is, in the opinion of the court, essential for a just decision of the case. If, however, the court is of the view that evidence of a particular witness is necessary for reaching a just decision of the case, the court, either on its own or on the application of any of the parties concerned, call, recall or re-examine any witness as long as it does not cause prejudice to any of the parties concerned or does not give an undue advantage to any of such parties. 15. This kind of power, which Section 311 vests in a court, is not peculiar to the criminal law inasmuch as similar provisions have been made even in respect of civil courts in the form of Order X, Rule 2, Order X, Rule 14 and Order XVIII, Rule 17. Even Section 165 of the Evidence Act recognizes court's power to put any questions any witness, at any time, which appears to the Judge as necessary for just decision of the case or in order to discover or obtain proof of relevant facts. 16. Even Section 165 of the Evidence Act recognizes court's power to put any questions any witness, at any time, which appears to the Judge as necessary for just decision of the case or in order to discover or obtain proof of relevant facts. 16. I may pause here to point put that a trial Judge is net 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. If, therefore, a Judge finds that the examination of a witness is not being conducted in such a way as to unfora 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. 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 motu, of 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. 29. What crystallizes from the above discussion is that the conviction of the accused-appellant rests on materials, which were not full and complete. 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. 29. What crystallizes from the above discussion is that the conviction of the accused-appellant rests on materials, which were not full and complete. In such circumstances, there can be no escape from the conclusion that if the said two 'dying declarations', which had been allegedly made to the Investigating Officer and the Executive Magistrate, are not brought on record, it may cause prejudice to either party, i.e., the prosecution and the defence, inasmuch as it is not possible, in the absence of the said two alleged 'dying declarations', to determine and hold confidently as to what Pompi had stated to the Investigating Officer or to the Executive Magistrate and whether all her statements were consistent and in favour of the prosecution or whether any of these three allegedly recorded 'dying declarations' was in favour of the defence and the veracity as well as value thereof. 30. It needs to be acknowledged and borne in mind that a 'dying declaration' needs to be scrupulously examined by the Court, which must remain alive to all the attendant circumstances at the time, when the 'dying declaration' is claimed to have come into existence. When more than one 'dying declaration' are found to have been made, the Court cannot rely on the 'dying declarations', which go in favour of the prosecution, and ignore the ones, which may be in favour of the defence. Without assigning any reason as to why a 'dying declaration' has been accepted as a statement made by the deceased, whose cause of death is in question, no reliance can be placed by the Court on a 'dying declaration' of a deceased, which goes in favour of the prosecution, by ignoring the other 'dying declarations', which may go in favour of the defence. Reference may be made, in this regard, to the case of Puran Chand Vs. State of Haryana (2010 Crl. L.J. 3423), wherein, while considering a Court's role in dealing with more than one 'dying declarations', the Supreme Court held as under 11...............When there are more than one dying declarations, the intrinsic contradictions in those dying declarations are extremely important. Reference may be made, in this regard, to the case of Puran Chand Vs. State of Haryana (2010 Crl. L.J. 3423), wherein, while considering a Court's role in dealing with more than one 'dying declarations', the Supreme Court held as under 11...............When there are more than one dying declarations, the intrinsic contradictions in those dying declarations are extremely important. It cannot be that a dying declaration, which supports the prosecution alone can be accepted, while the other innocuous dying declarations have to be rejected. Such trend will be extremely dangerous. However, the Courts below are fully entitled to act on the dying declarations and made then the basis of conviction, where the dying declarations pass all the above tests. (Emphasis supplied) 31. Because of what have been discussed and pointed out above, we are clearly of the view, if we may reiterate, that if all the relevant materials are not brought on record, the Court would not be able to do justice. In other words, if all the materials are not brought on record, it would cause serious miscarriage of justice. 32. Left with no alternative, therefore, we set aside the conviction and the sentence, passed against the accused-appellant by the judgement and order under appeal, and remand the case to the learned trial Court for its decision, in accordance with law, after having ensured that all relevant materials, in the light of the preceding discussions, are brought on record. 33. We make it clear that though we have set aside the conviction and sentence of the accused-appellant, we are firmly of the view that the accused-appellant must remain in the prison until the trial is completed. Ordered accordingly. 34. To the extent, as indicated above, this appeal stands allowed. The learned trial is directed to deal with the case expeditiously and dispose of the same in accordance with law. Send back the LCR. Appeal allowed