Md. Isha Shah @ Md.Isha @ Isha Sah v. The State Of Bihar

IN THE HIGH COURT OF JUDICATURE AT PATNA

CRIMINAL APPEAL (SJ) No.325 of 2019 Arising Out of PS. Case No.-259 Year-2016 Thana- CHHATAUNI District- East Champaran ====================================================== Md. Isha Shah @ Md. Isha @ Isha Sah Son of Abdul Tahir Resident of Village-Bariyar pur P.S.- Chhatauni District- East Champaran Motihari. ... ... Appellant/s

Versus

The State of Bihar ... ... Respondent/s ====================================================== Appearance :

For the Appellant/s :

Mr.Satish Kumar Sinha Mr. Rajesh Kumar For the Respondent/s :

Mr. Sujit Kumar Singh, APP ====================================================== CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI ORAL JUDGMENT Date : 04-09-2019 Appellant Md. Isha Shah @ Md. Isha @ Isha Sah has been found guilty for an offence punishable under Section 324 of the Indian Penal Code and sentenced to undergo R.I. for three years as well as to pay fine appertaining to Rs. 2,000/- in default thereof to undergo S.I. for two months, under Section 307 of the Indian Penal Code and sentenced to undergo R.I. for ten years as well as to pay fine appertaining to Rs. 10,000/- in default thereof to undergo S.I. for six months, with further direction to run the sentences concurrently, vide judgment of conviction dated 26.11.2018 and order of sentence dated 30.11.2018 passed by 13th Addl. Sessions Judge, East Champrana at Motihari in connection with S.Tr. No. 479 of 2017. Deceased Wasim Hasmi filed a written report on 04.11.2016 disclosing therein that on 24.10.2016 at about 11:00 P.M.

2/21 Md. Isha, s/o Abdul Tahir came at his Darwaja and began to abuse his mother. He protested as well as also, tried to pacify the matter but he did not pay heed to it. Subsequently thereof, he (Md. Isha) became enraged and, directed him to leave the place otherwise he will be murdered. No sooner than, he (Md. Isha) pierced knife in his stomach as a result of which he sustained severe injury. He fell in the pool of blood. He became unconscious. With the help of villagers, he has been lifted to Rahmaniya Medical Centre where he was undergoing treatment. After regaining sense, he is giving his statement to Chhatauni P.S. On the basis of the aforesaid written report, Chhatauni P.S. Case No. 259/2016 has been registered commencing with an investigation as well as submission of charge-sheet under Sections 341, 324, 307 on 31.12.

2016 whereupon, trial commenced and concluded in a manner, subject-matter of this appeal. Defence case as is evident from the mode of crossexamination as well as statement recorded under Section 313 of the Cr.P.C. is of complete denial. Furthermore, it has also been pleaded that deceased had sustained the said injury during process of self infliction as was suffering from epilepsy since before. In order to substantiate the same, appellant/accused himself examined as D.W. 1.

In order to substantiate its case, prosecution has examined altogether seven PWs who are P.W. 1 Haidar Ali, P.W. 2

3/21 Shamim Akhtar, P.W. 3 Manojar Kumar Singh Ram, P.W. 4 Vakilan Khatoon, P.W. 5 Kalpnath Singh, P.W. 6 Sri Krishna Ram and P.W. 7 Dr. Ashok Kumar Deokuliar. The prosecution has also exhibited Ext. 1- written report, Ext. 2- injury report, Ext. 3- Supplementary injury report, Ext. 4- post-mortem report. As stated above, appellant/accused himself examined as DW 1 and further exhibited order of cognizance relating to Chhatauni P.S. Case No. 128/2012 as Ext.-A and F.I.R. of Chhatauni P.S. Case No. 128/2012 as Ext.-B.

While prayer for bail was being moved at the end of the appellant, during course appreciation thereof when the judgment impugned has been gone through, considering the finding recorded under para 25 thereof in consonance with the submission having made on behalf of learned counsel for appellant while sailing with the trial before the lower court emphasizing that no miscarriage of justice had occurred as well as learned Addl. P.P. who submitted that miscarriage of justice has occurred during course of trial, hence this matter has been directed to be listed for hearing on priority basis. In order to justify, it has been submitted that there happens to be inordinate delay in registration of the F.I.R. and for that, there happens to be no explanation.

4/21 and so, it was incumbent upon the prosecution to have recorded a case at an earliest wherein it failed.

In its continuity, it has also been submitted that in case the evidence of PW 1, brother of informant, is properly scrutinized, it is apparent that he has admitted to the extent that police was approached before whom statement was given. No such statement is available on the record that means to say, prosecution has suppressed the earlier version, and so, an adverse inference be drawn against the prosecution for the lapses having at their end. It has further been submitted that from the written report itself it is evident that victim had gone to the police station that too, without being discharged from the hospital. In the aforesaid background, the conduct of the prosecution party became dubious whereupon, ultimately the appellant should be found to be beneficiary, in any view of the matter, the judgment of conviction would not sustain.

Apart from this, it has also been submitted that when its evidence of respective witness is gone through, it is apparent that prosecution has miserably failed to substantiate the charge levelled against the appellant and that being so, the judgment of conviction and sentence recorded by the learned lower court did not find favour. It has also been submitted that there happens to be inconsistency in the evidence of PW 5 as well as PW7 with regard to

5/21 injury having over the person of the deceased/injured. In likewise manner, it has also been submitted that how the doctor (PW7) was examined is a matter of concern. Because of the fact that the evidence of PW 7 would have been allowed at the end of learned lower court as, neither he was charge-sheet witness nor there happens to be disclosure in the charge-sheet with regard to death of the deceased and further, there happens to be no connectivity in between and further, even in worst case admitting that the death had occurred after elapse of so many months, could not be tagged with the instant trial, as aforesaid event was not under subjugation.

Therefore, even after examination of PW 7, the matter would not improved nor there is justification of trial of the appellant for an offence punishable under Section 304 of the Indian Penal Code and so, it could not be said that during conduction of trial, there was miscarriage of justice and so, at the present moment, the case should not be remitted back to the learned lower court on that very score as, the same will cause injustice to the appellant. Consequent thereupon, it has been submitted that after considering the facts of the case, it is crystal clear that prosecution has failed to substantiate its case whereupon the judgment impugned is fit to be set aside.

Learned Addl. P.P. stoutly opposes the submission and submitted that trial happens to be for a particular offence.

6/21 Commission of an occurrence and its resultant both are interdependent and attracts single trial and so, the trial has to be conducted in combination of result, irrespective of submission of chargesheet under different Sections.

That being so, once the matter has come up before the learned lower court that deceased died of an injury having received by him during course of occurrence and for that, he was being treated, then in that event the charge would have been amended in accordance with Sections 216, 217 of the Cr.P.C. Irrespective of the fact that learned lower court was knowing that deceased had died and on that very score P.W.7, the doctor, who conduct post-mortem had already been allowed to be examined. Post-mortem report is already on record. From the evidence of PW 5 there happens to be a prima facie evidence that deceased was being treated and during course of treatment, he died, certainly would attract prosecution of the appellant under Section 304 of the Indian Penal Code.

Because of the fact that no charge has been amended on account thereof, there happens to be miscarriage of justice on that very score requires De Novo trial.

7/21 treated. So, irrespective of the fact that deceased died after so many months but, once material has been made available on record that on account of the injury sustained by him having been inflicted by the appellant and so, the long gap is the reason for prosecution under Section 304 of the Indian Penal Code, otherwise, it would have been under Section 302 IPC. Consequent thereupon, the judgment impugned be set aside and the matter be remitted back to the learned lower court to proceed afresh after amending the charge in accordance with Section 216 of the Cr.P.C. and further giving opportunity in accordance with Section 217 of the Cr.P.C.

Section 386 of the Cr.P.C. deals with the power of an Appellate Court. It happens to be bifurcated in so many parts, the first one deals with judgment against acquittal and the later part guides the judgment against conviction. Remaining are the part which deal with enhancement and then is the residue governing all the circumstances.

For better appreciation, Section 386 of the Cr.P.C. is quoted below:

"Powers of the Appellate Court. - After perusing such record and hearing the appellant or his pleader, if he appears, and the Public Prosecutor, if he appears, and in case of an appeal under Section 377 or section 378, the accused, if he appears, the Appellate Court may, if it considers that there is no

8/21 sufficient ground for interfering, dismiss the appeal, or may - (a) in an appeal from an order of acquittal, reverse such order and direct that further inquiry be made, or that the accused be retried or committed for trial, as the case may be, or find him guilty and pass sentence on him according to law;

(b) in an appeal from a conviction - (i) reverse the finding and sentence and acquit or discharge the accused, or order him to be re-tried by a Court of competent jurisdiction subordinate to such Appellate Court or committed for trial, or (ii) alter the finding, maintaining the sentence, or (iii) with or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence, but not so as to enhance the same;

(c) in an appeal for enhancement of sentence - (i) reverse the finding and sentence and acquit or discharge the accused or order him to be re-tried by a Court competent to try the offence, or (ii) alter the finding maintaining the sentence, or (iii) with or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence, so as to enhance or reduce the same;

(d) in an appeal from any other order, alter or reverse such order;

(e) make any amendment or any consequential or incidental order that may be just or proper:

Provided that the sentence shall not be

9/21 enhanced unless the accused has had an opportunity of showing cause against such enhancement:

Provided further that the Appellate Court shall not inflict greater punishment for the offence which in its opinion the accused has committed, than might have been inflicted for that offence by the Court passing the order or sentence under appeal."

After going through Section 386 of the Cr.P.C., it has become crystal clear that there happens to be no infringement of power of an appellate court even to set aside the judgment and remit the matter to the learned lower court in case, there happens to be miscarriage of justice. How the miscarriage of justice is to be taken into consideration, in Issac @ Kishor Vs. Ronald Cheriyan and Ors. Reported in 2018 (2) SC57, it has been observed:

"11. Normally, retrial should not be ordered when there is some infirmity rendering the trial defective. A retrial may be ordered when the original trial has not been satisfactory for particular reasons like..., appropriate charge not framed, evidence wrongly rejected which could have been admitted or evidence admitted which could have been rejected etc.

Retrial cannot be ordered when there is a mere irregularity or where it does not cause any prejudice, the Appellate Court may not direct retrial. The power to order retrial should be exercised only in exceptional cases.

12. In K. Chinnaswamy Ready Vs. State of Andhra Pradesh and Another, AIR 1962 SC 1788, the accused had been convicted by the trial court. The Sessions Court took the view that an important piece of evidence held

10/21 against the accused was inadmissible and acquitted him. The High Court in revision the de facto complainant held that the evidence held to be inadmissible by the Sessions Court was admissible and set aside the acquittal directing the accused to be retried on the same charges. The Supreme Court agreed with the High Court that the acquittal deserved to be set aside. In para (7), this Court has spelt out what could be termed as exceptional circumstances which reads as under:- "7.

It is true that it is open to a High Court in revision to set aside an order of acquittal even at the instance of private parties, though the State may not have thought fit to appeal; but this jurisdiction should in our opinion be exercised by the High Court only in exceptional cases, when there is some glaring defect in the procedure or there is a manifest error on a point of law and consequently there has been a flagrant miscarriage of justice. Subsection (4) of Section 439 forbids a High Court from converting a finding of acquittal into one of conviction and that makes it all the more incumbent on the High Court to see that it does not convert the finding of acquittal into one of conviction by the indirect method of ordering retrial, when it cannot itself directly convert a finding of acquittal into a finding of conviction.

This places limitations on the power of the High Court to set aside a finding of acquittal in revision and it is only in exceptional cases that this power should be exercised.

11/21 determining such exceptional cases which would cover all contingencies. We may however indicate some cases of this kind, which would in our opinion justify the High Court in interfering with a finding of acquittal in revision.

These cases may be: where the trial court has no jurisdiction to try the case but has still acquitted the accused, or where the trial court has wrongly shut out evidence which the prosecution wished to produce, or where the appeal court has wrongly held evidence which was admitted by the trial court to be inadmissible, or where material evidence has been overlooked either by the trial court or by the appeal court, or where the acquittal is based on a compounding of the offence, which is invalid under the law. These and other cases of similar nature can properly be held to be cases of exceptional nature, where the High Court can justifiably interfere with an order of acquittal: and in such a case it is obvious that it cannot be said that the High Court was doing indirectly what it could not do directly in view of the provisions of Section 439(4)......"

(underlining added) The same principle was again reiterated in Mahendra Pratap Singh Vs. Sarju Singh and Another, AIR 1968 SC 707.

13. In Matukdhari Singh and Others vs.

Janardan Prasad, AIR 1966 SC 356, accused was tried for offences under Sections 420, 466, 406 and 465/471 IPC and acquitted. The trial court did not frame

12/21 charge under Section 467 IPC regarding which there were prima facie materials available, that is an offence triable exclusively by the Sessions Court. The High Court, in appeal, set aside the acquittal and ordered retrial. The Supreme Court dismissed the appeal preferred before it. The court referred to earlier decisions in Abinash Chandra Bose vs. Bimal Krishna Sen and Another, AIR 1963 SC 316 and Rajeshwar Prasad Mishra Vs. State of West Bengal and Another, AIR 1965 SC 1887 with reference to the facts of those cases and emphasized that wide discretion available with the Appellate Court in ordering retrial." In P. Ramesh V. State Rep by Inspector of Police reported in 2019 SCC Online SC 927, it has been held:- "19. We are mindful of the fact that the decision of the High Court was in an appeal preferred by the accused.

In such a situation it is necessary to discuss the scope of the High Court's powers in an appeal filed against conviction. Section 374 of the CrPC provides for appeals against convictions and allows any person convicted by a Sessions Judge or an Additional Sessions Judge to appeal before the High Court. Section 386 of the CrPC defines the powers of the Appellate Court while disposing of an appeal against an order of conviction or acquittal. The power under this section is not unlimited. The provision is to be taken as giving the power to do only that which the lower court could and should have done in a criminal case.

20. A three judge Bench decision of this Court in Mohd Hussain v State (Govt of NCT of Delhi)13 while dealing with the powers of the Appellate Court to order a retrial under Section 386(b) of the CrPC,

13/21 held thus:

"41. The appellate court hearing a criminal appeal from a judgment of conviction has power to order the retrial of the accused under Section 386 of the Code. That is clear from the bare language of Section 386(b).

Though such power exists, it should not be exercised in a routine manner. A de novo trial or retrial of the accused should be ordered by the appellate court in exceptional and rare cases and only when in the opinion of the appellate court such course becomes indispensable to avert failure of justice. Surely this power cannot be used to allow the prosecution to improve upon its case or fill up the lacuna. A retrial is not the second trial; it is continuation of the same trial and same prosecution. The guiding factor for retrial must always be demand of justice.

Obviously, the exercise of power of retrial under Section 386(b) of the Code, will depend on the facts and circumstances of each case for which no straitjacket formula can be formulated but the appeal court must closely keep in view that while protecting the right of an accused to fair trial and due process, the people who seek protection of law do not lose hope in legal system and the interests of the society are not altogether overlooked."

21. A similar position was adopted by this Court in Ajay Kumar Ghoshal v State of Bihar14, where it was held thus:

"11. Though the word "retrial" is used under Section 386(b)(i) CrPC, the powers conferred by this clause is to be exercised only in exceptional cases, where the appellate court is satisfied that the omission or irregularity has occasioned in failure of justice. The circumstances that should exist for warranting a retrial must be such that where the trial was undertaken by the court having no jurisdiction, or trial was vitiated by serious illegality or irregularity on

14/21 account of the misconception of nature of proceedings. An order for retrial may be passed in cases where the original trial has not been satisfactory for some particular reasons such as wrong admission or wrong rejection of evidences or the court refused to hear certain witnesses who were supposed to be heard."

(emphasis supplied)

22. The power of an Appellate Court to order a retrial on the limited point of rerecording statements of witnesses was recently discussed in Atma Ram and Ors v State of Rajasthan15, where the Trial Court had convicted the accused persons of offences under Section 302, 307, 452, 447, 323, 147, 148 and 149 IPC and sentenced them to death. During the trial, the court had recorded the evidence of twelve witnesses in absence of the accused persons.

In an appeal against conviction preferred by the accused persons, the High Court exercised its powers under Section 386(b) of CrPC to quash and set aside the judgment of the Trial Court and remanded the matter back to Trial Court to the extent of recording statements of the twelve witnesses afresh after securing presence of the accused in the court. The High Court held in the following terms:

"In view of the discussion made hereinabove and looking to the glaring facts of the case at hand, we feel that in order to do complete justice to the accused as well as to the victims, the entire case cannot be thrown out by holding the proceedings to be vitiated on account of the mistakes committed by the trial Judge or the prison authorities concerned. A fresh trial/de-novo has to be ordered by directing the trial court to lawfully re-record statements of the witnesses indicated above whose evidence was recorded in the first round without ensuring presence of the accused in the

15/21 court.

23. The accused persons preferred a Special Leave Petition before this Court, challenging the High Court's order of a denovo trial for re-recording of statements of witnesses. Affirming the view taken by the High Court, this Court held thus:

"22. ... Section 386 then enumerates powers of the Appellate Court which inter alia includes the power to "reverse the finding and sentence and acquit or discharge the accused, or order him to be re-tried by a Court of competent jurisdiction subordinate to such Appellate Court or committed for trial". The powers of Appellate Court are equally wide. The High Court in the present case was exercising powers both under Chapters XXVIII and XXIX of the Code. If the power can go to the extent of ordering a complete re-trial, the exercise of power to a lesser extent namely ordering de novo examination of twelve witnesses with further directions as the High Court has imposed in the present matter, was certainly within the powers of the High Court. There is, thus, no infraction or jurisdictional error on the part of the High Court."

"25. ... If there was an infraction, which otherwise does not vitiate the trial by itself, the attempt must be to remedy the situation to the extent possible, so that the interests of the accused as well as societal interest are adequately safeguarded. The very same witnesses were directed to be de novo examined which would ensure that the interest of the prosecution is subserved and at the same time the accused will have every right and opportunity to watch the witnesses deposing against them, watch their demeanor and instruct their counsel properly so that said witnesses can be effectively cross-examined. In the process, the interest of the accused would also stand protected. On the other hand, if we were to

16/21 accept the submission that the proceedings stood vitiated and, therefore, the High Court was powerless to order de novo examination of the concerned witnesses, it would result in great miscarriage of justice.

The persons who are accused of committing four murders would not effectively be tried.

The evidence against them would not be read for a technical infraction resulting in great miscarriage. Viewed thus, the order and directions passed by the High Court completely ensure that a fair procedure is adopted and the depositions of the witnesses, after due distillation from their cross-examination can be read in evidence."

(emphasis supplied) Now coming to the facts of the case, it is evident from the evidence of PW 5 para 2 (last line of examination-inchief) the injured Wasim Hasmi died in course of treatment and on that score there happens to be no cross-examination at least to the effect whether the deceased was being treated continuously being indoor patient at the hospital or was allowed to come at some interval and further whether after admission of the injured, any O.D. slip was sent to the police for having presence of the police for recording of the F.I.R. at an earliest. In likewise manner, the I.O. (P.W. 6) during his examination-in-chief has stated that he had procured injury report. He had received supervision note and then, has stated that Wasim Hasmi died during course of treatment at Rahmaniya Hospital. He had sent the dead body to Sadar Hospital

17/21 for post-mortem and after conduction of post-mortem, he had deposited the post-mortem report in the court. During course of cross-examination, he has stated that he had inspected the body of the deceased at that very time. The injury was not completely healed up. Because of the fact that inquest report is not available before him on account thereof, he is unable to depose in detail. He had received post-mortem report. He had gone through the same. He had not mentioned the same in the case diary. How it could be as, neither supplementary charge sheet was submitted in accordance with Section 173(8) Cr.P.C. nor the case diary after submission of charge sheet remained with him. He is not remembering what was the cause of the death. He had further stated that he has investigated over the cause of death but he had not collected material. PW. 7 is the doctor who had conducted postmortem and had found the following: Incised wound (Regular margin) with pounting of gut and omentum size 1 1/2" X1" cavity deep over abdomen 5" below the umlical region.

During cross-examination he has stated that he had not found fresh mark of injury over abdomen of the deceased. He has further stated that old scar was present which was not totally healed up. He had not mentioned in the report that whole scar was completely healed up.

18/21 So far as oral evidence is concerned, PW 1 is the brother, P.W. 2 is father, P.W. 3 is an independent witness, P.W. 4 is the mother. They all have stated that during course of treatment deceased succumbed to his injury.

Apart from this, the appellant/accused himself came in witness box as DW 1 in accordance with Section 315 Cr.P.C. He has claimed himself to be uncle of the deceased. He has further disclosed that deceased was suffering from epilepsy and on account thereof, he had fallen over a Phasuli (a kitchen weapon used for the purpose of cutting of vegetable etc.) as a result of which he sustained injury and due to that injury, he died. That means to say injury by means of sharp cutting weapon and cause of death on account of aforesaid injury goes out of controversy. Whether it happens to be accidental or intentional is a matter of trial and so, the matter is to be seen in that prospect.

In the facts and circumstances of the case, as has been detailed herein above, it has become abundantly clear that the learned lower court, as was entrusted u/s 216 Cr.P.C. would have taken recourse to amend the charge for proper adjudication. At the present moment, Sub-section (2) of 221 of the Cr.P.C.

19/21 however, by such implication, the Appellant may feel aggrieved. It is not that, the learned lower court was completely hopeless while framing of charge u/s 227, 228 Cr.P.C. was quite competent to scrutinize the material. The proper considering the consequence, is found duly acknowledged while going through the theme of jurisdiction, as prescribed u/s 179 as well as 184 of the Cr.P.C. In likewise manner, Section 220 of the Cr.P.C. also permits the same. That means to say, at an initial stage, the learned lower court, had it been vigilant, taken recourse of. To have proper ramification, the trial court has been legally armoured by way of presence of Section 216 Cr.P.C., "It is needless to say that the aim of trial is quest for truth". The basic principle is, an innocent should not be punished, but culprit should not be spared.

In Varinder Kumar Vs. State of Himachal Pradesh reported in 2019(2) PLJR 136 (SC), it has been held:- "11. The paramount consideration being to interpret the law so that it operates fairly, the facts of that case did not show any need to visualise what all exceptions must be carved out and provided for. The attention of the Court was also not invited to the need for considering the carving out of exceptions.

12. Individual rights of the accused are undoubtedly important. But equally important is the societal interest for bringing the offender to book and for the system to send the right message to all in the society - be it the law-abiding citizen or the potential offender. 'Human rights'

20/21 are not only of the accused but, extent apart, also of the victim, the symbolic member of the society as the potential victim and the society as a whole.

13. Law has to cater to wide variety of situations as appear in society. Law being dynamic, the certainty of the legislation appears rigid at times whenever a circumstance (set of facts) appears which is not catered for explicity. Expediency then dictates that the higher judiciary, while interpreting the law, considers such exception(s) as are called for without disturbing the pith and substance and the original intention of the legislature. This is required primarily for the reason to help strike a balance between competing forces - justice being the end - and also because the process of fresh legislation could take a long time, which would mean failure of justice, and with it erosion of public confidence and trust in the justice delivery system.

14. The principle of fair trial now informs and energises many areas of the law. It is a constant, ongoing, evolutionary process continually adapting itself to changing circumstances, and endeavouring to meet the exigencies of the situation - peculiar at times - and related to the nature of crime, persons involved, directly or operating from behind, and so many other powerful factors which may come in the way of administration of criminal justice, wherefore the endeavour of the higher courts, while interpreting the law, is to strike the right balance."

After having minute observation of the material available on record, it is clearly manifest that had there been proper application of judicial mind, such omissions which go to the root would not have happened. That means to say, by such omissions, miscarriage of

21/21 justice is found apparent on the record, which did not justify the finding recorded by the lower court. Hence, same is set aside. Appeal is allowed. However, matter is remitted back to the learned lower court to proceed afresh either having fresh charge/ or invoking power u/s 216 Cr.P.C., whereupon will follow the procedure so prescribed u/s 217 Cr.P.C. and will conclude the trial in accordance with law. Appellant, who is under custody, is directed to be produced before the learned lower court.

(Aditya Kumar Trivedi, J) rakhi/- AFR/NAFR CAV DATE N.A.

Uploading Date 24.09.2019 Transmission Date 24.09.2019