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The Supreme Court has said that the courts have to take a participatory role in the trial and not act as mere tape recorders to record whatever is being stated by the witnesses as it is the duty of the court to arrive at the truth and subserve the ends of justice.

"The judge has to monitor the proceedings in aid of justice. Even if the prosecutor is remiss or lethargic in some ways, the court should control the proceedings effectively so that the ultimate objective that is the truth is arrived at. The court must be conscious of serious pitfalls and dereliction of duty on the part of the prosecuting agency," a bench of Chief Justice of India D Y Chandrachud and Justices J B Pardiwala and Manoj Misra said.

The court said that upon failure of the prosecuting agency showing indifference or adopting an attitude of aloofness, the trial judge must exercise the vast powers conferred under Section 165 of the Evidence Act and Section 311 of the CrPC respectively to elicit all the necessary materials by playing an active role in the evidence collecting process. 

The court also emphasised that there should not be any element of political consideration in the matters like appointment to the post of public prosecutor, etc. The only consideration for the Government should be the merit of the person. The person should be not only competent, but he should also be a man of impeccable character and integrity. He should be a person who should be able to work independently, the court said.

The bench dismissed an appeal filed by one Anees against the Delhi High Court's judgment which upheld his conviction and sentence of life imprisonment for murder of his wife in 1995. The couple's five-year-old daughter was the sole eye witness to the case but she was declared hostile.

During the trial, the bench said that all that the public prosecutor did was to put a few suggestions to her for the purposes of cross-examination. Surprisingly, even proper contradictions were not brought on record. In other words, the child witness was not even appropriately confronted with her police statement, it noted.

"It is not sufficient for the public prosecutor while cross-examining a hostile witness to merely hurl suggestions, as mere suggestions have no evidentiary value. The trial judge also failed to play an active role in the present case. The trial judge should have been conscious of the fact that Shaheena was asked to depose in the open court in a charged atmosphere and that too in the presence of the accused who was none other than her own father," the bench said.

Referring to Section 106 of the Evidence Act, the bench said cases are frequently coming before the courts where the husband, due to strained marital relations and doubt as regards the character, has gone to the extent of killing his wife. These crimes are generally committed in complete secrecy inside the house and it becomes very difficult for the prosecution to lead evidence. No member of the family, like in the case at hand, even if he is a witness of the crime, would come forward to depose against another family member, it said.

"If an offence takes place inside the four walls of a house and in such circumstances where the accused has all the opportunity to plan and commit the offence at a time and in the circumstances of his choice, it will be extremely difficult for the prosecution to lead direct evidence to establish the guilt of the accused. It is to resolve such a situation that the provision exists in the statute book," the bench said.

Although the conduct of an accused may be a relevant fact under Section 8 of the Evidence Act, yet the same, by itself, cannot be a ground to convict him or hold him guilty and that too, for a serious offence like murder, the bench said. 

Like any other piece of evidence, the conduct of an accused is also one of the circumstances which the court may take into consideration along with the other evidence on record, direct or indirect. The conduct of the accused alone, though may be relevant under Section 8 of the Evidence Act, cannot form the basis of conviction, it pointed out.

In the case, the bench said, a five-year-old daughter might have resiled thinking that having lost her mother, the father was the only person who may take care of her and bring her up.

However, why she turned hostile is not important. What is important is the role of the public prosecutor after a prime witness, more particularly a child witness of tender age, turns hostile in a murder trial. When any prosecution witness turns hostile and the public prosecutor seeks permission of the trial court to cross-examine such witness then that witness is like any other witness, it said.

"In the case at hand, not only proper contradictions were not brought on record in the oral evidence of the hostile witnesses, but even those few that were brought on record, were not proved through the evidence of the Investigating Officer. Does the State expect Section 106 of the Evidence Act to come to its aid in every criminal prosecution. At times, such procedural lapses may lead to a very serious crime going unpunished. Any crime committed against an individual is a crime against the entire society. In such circumstances, neither the public prosecutor nor the presiding officer of the trial court can afford to remain remiss or lackadaisical in any manner," the bench said.

In its judgment, the court also rejected a plea by the accused that the offence would fall under exception 4 of Section 300 IPC.

"We have no hesitation in saying that the present case is not one of culpable homicide not amounting to murder but the same is a case of murder. We should not overlook the fact that the appellant inflicted as many as twelve blows with a knife on the deceased who was unarmed and helpless," the bench said.

"Where the offender takes undue advantage or has acted in a cruel or an unusual manner, the benefit of Exception 4 cannot be given to him. If the weapon used or the manner of attack by the assailant is disproportionate, that circumstance must be taken into consideration to decide whether undue advantage has been taken," the bench added.

While upholding the conviction and sentence, the court noted a number of mitigating circumstances like the appellant was 65-year-old and spent almost 11 years in jail and thus granted liberty to him to prefer an appropriate representation addressed to the State Government for remission of sentence. 

"If any such representation is filed by the appellant, the State Government shall look into the same at the earliest and take an appropriate decision on the same in accordance with law within four weeks from the date of the receipt of such representation and communicate the same in writing to the appellant," the bench ordered.