Bal Gopal Verma and Others vs Sandeep Tanwar and Others

Kanwaljit Singh Ahluwalia, J.—Sandeep Tanwar, appellant in S.B. Criminal Appeal No. 86/2009, on the complaint filed by Bal Gopal Verma, petitioner to Criminal Revision Petition No. 1529/2008, was alone tried by the Court of Additional Sessions Judge (Fast Track), Chhabra Distt. Baran.

The trial Judge vide impugned judgment dated 26th June, 2008, had held appellant Sandeep guilty of the offences under Sections 304(B), and 498(A) IPC, and vide a separate order of even date, the trial Judge sentenced the appellant as under:-

For offence under Section 304(B) IPC: to undergo ten years rigorous imprisonment.

For offence under Section 498(A) IPC: to undergo two years rigorous imprisonment, and to pay a fine of Rs. 2000/-. In default thereof, to further undergo six months rigorous imprisonment.

The above-said sentences were ordered to run concurrently.

Sandeep has filed S.B. Criminal Appeal No. 86/2009, to assail his conviction of offences under Sections 304(B), and 498(A) IPC and sentence awarded for the said offences, whereas complainant Bal Gopal Verma has preferred D.B. Criminal Revision Petition No. 1529/2008, to challenge the acquittal of Sandeep for offence under Section 302 IPC.

By this common order, we shall decide Criminal Appeal preferred by appellant Sandeep Tanwar, and Criminal Revision Petition No. 1529/2008, preferred by complainant father of deceased Rekha together.

Rekha on 11th May, 2005, was married with Sandeep Tanwar who was working as Compounder. Bal Gopal Verma had lodged FIR (Ex.P/16), wherein he stated that at the time of marriage of his daughter Rekha, he had given dowry, according the demands of the accused. Sandeep Tanwar, and Rekha both were residing as husband, and wife at Chhabra. After marriage, Sandeep, his parents, and younger brother Manish were demanding Rs. 4,00,000/- as dowry. Sandeep was torturing Rekha to bring Rs. 10,000/- from the complainant. Sandeep had given threat many times to desert Rekha, and had turned her out of the house. Rekha on telephone had informed that Sandeep had harassed her, and demanded Rs. 10,000/-, and he is having illicit relations with Rukhsana who was working as a nurse. On 17th November, 2007, Sandeep informed the complainant that Rekha is not keeping good health, and later, information was relayed that Rekha had died.

On the basis of report (Ex.P/16), lodged by the present complainant-petitioner to revision, Bal Gopal Verma, case FIR No. 232/2007 (Ex.P/17), was registered at Police Station, Chhabra for offences under Sections 498A and 304B IPC.

The prosecuting agency submitted charge-sheet against the appellant. He was charged by the trial Court for offences under Sections 302 IPC, in alternate for offence under Section 304(B) IPC, and offence under Section 498A IPC.

The appellant pleaded not guilty, and claimed trial.

Prosecution commenced its evidence, and examined twenty-one witnesses, and proved 31 documents.

The trial Judge vide the impugned judgment as stated earlier, has recorded the acquittal of the accused appellant Sandeep Tanwar for offence under Section 302 IPC.

Out of 21 witnesses examined, Om Prakash (P.W.1), Vinod Kumar (P.W.3), and Dinesh Pankaj (P.W.12), had attested inquest proceedings, and had also proved memos whereby the police had taken articles from the spot into possession.

Ishwar (P.W.14), had photographed the place of occurrence.

Pappu (P.W.2), and Sushila (P.W.7), being maternal uncle, and maternal aunt (mama-mami) deposed in Court that deceased used to complain that Sandeep Tanwar was having illicit relations with one lady, and was harassing their niece Rekha for bringing cash from her parents.

Shyama Devi (P.W.4), mother, Sunita (P.W.5), sister, have also deposed regarding the conduct of the appellant.

Smt. Shakuntala (P.W.6), land-lady where Sandeep Tanwar, and deceased Rekha were staying together had stated that Sandeep was addicted to alcohol but Rekha had made no complaint to her. Smt. Shakuntala (P.W.6), was declared hostile.

Natwarlal Maheshwari (P.W.10), husband of Shakuntala (P.W.6), stated that Rekha used to complain that Sandeep Tanwar was demanding dowry, and cash from her parents.

Pramod (P.W.8), stated that Rekha used to come to STD Booth to make telephonic call.

Mathuralal (P.W.9), land-lord of other house where husband and wife had stayed together had not supported the prosecution case, and was declared hostile.

Laxmi Chand (P.W.11), stated that Rekha was not having a good health, and he alongwith Satyaprakash, Radiographer had gone to examine wife of the appellant.

Balgopal (P.W.16), had also reiterated the allegations of demand of dowry, harassment, and the fact that accused inflicted mental, and physical cruelty upon his daughter for demand of dowry, and cash.

Dr. N.K. Jain (P.W.21), had conducted autopsy on the dead body of Rekha, and had proved Post-Mortem Report (Ex.P/31). This witness after report of viscera had opined that cause of death was consumption of Chloroquine. This witness further stated that there were three abrasions found on the neck, and the cause of death was throttling.

The trial Judge after considering the evidence of Dr. N.K. Jain (P.W.21), stated that there was no fracture, contusion or laceration on the neck, and thus, it cannot be held that cause of death was throttling. The Court came to the conclusion that in case three grams of Chloroquine is administered, death can occur.

The finding given by the trial Court in para 35 of the impugned judgment is reproduced below:-

It is to be noted that in the present case, there is no eyewitness so far murder is concerned.

In the present case, marriage between Rekha, deceased and accused Sandeep Tanwar on day of occurrence was within seven years. The witnesses have proved demand of dowry on the part of the appellant, and Rekha had died an unnatural death. Thus, ingredients of offence under Section 304(B) IPC are made out against the appellant.

Mr. O.S. Lakhawat, counsel for the appellant has submitted that in view of the observations made by us that offence under Section 304(B) IPC is made out, he shall not press the present appeal as appellant had already undergone ten years, and has been released from jail after completion of sentence. Therefore, the issue whether offence under Section 304(B) IPC is made out or not, and reduction of sentence are only academic issues, and therefore, the present appeal be dismissed as not pressed.

Mr. Jitendra Pandey, appearing for the complainant-petitioner has stated that even though, no witness has been examined who had witnessed the murder, this Court should convert the offence under Section 304(B) IPC to Section 302 IPC, considering the abrasions present on the neck of the deceased to hold that Chloroquine was administered by the appellant. Learned counsel for the complainant-petitioner submits that we should presume guilt of accused by invoking Section 106 of the Indian Evidence Act.

We have perused the Post-Mortem Report (Ex.P/31). There are three abrasions on the neck of the deceased. Abrasion No. 1 was 1cm x 2 mm on the right side of neck. Abrasion No. 2 was 1/2 cm x 1/2 cm on the left side of neck, and abrasion No. 3 was 2 mm x 2 mm below the liner. The presence of abrasions in itself is not sufficient to infer that poison was administered forcibly as number of possibilities regarding sufferance of abrasions cannot be ruled out.

Be that as it may, in the present case, State has not preferred any appeal against the acquittal. The powers of the revisional Court in a revision against acquittal are limited. The view formulated by the trial Court is one view which is possible on the facts of the case.

It was held in AIR 1968 Supreme Court 707 Mahendra Partap Singh vs. Sarju Singh and another, relying upon D. Stephens Vs. Nosibolla, , as under:-

"only two grounds are mentioned by this Court as entitling the High Court to set aside an acquittal in a revision and to order a retrial. They are that there must exist a manifest illegality in the judgment of the Court of Session ordering the acquittal or there must be a gross miscarriage of justice. In explaining these two propositions, this Court further states that the High Court is not entitled to interfere even if a wrong view of law is taken by the Court of Session or if even there is mis-appreciation of evidence. Again, in Logendra Nath Jha and Others Vs. Shri Polailal Biswas, , this Court points out that the High Court is entitled in revision to set aside an acquittal if there is an error on a point of law or no appraisal of the evidence at all. This Court observes that it is not sufficient to say that the judgment under revision is "perverse" or "lacking in true correct perspective". It is pointed out further that by ordering a retrial, the dice is loaded against the accused, because however much the High Court may caution the Subordinate Court, it is always difficult to re-weigh the evidence ignoring the opinion of the High Court. Again in K. Chinnaswamy Reddy Vs. State of Andhra Pradesh, , it is pointed out that an interference in revision with an order of acquittal can only take place if there is a glaring defect of procedure such as that the Court had no jurisdiction to try the case or the Court had shut out some material evidence which was admissible or attempted to take into account evidence which was not admissible or had overlooked some evidence. Although the list given by this Court is not exhaustive of all the circumstances in which the High Court may interfere with an acquittal in revision it is obvious that the defect in the judgment under revision must be analogous to those actually indicated by this Court. As stated not one of these points which have been laid down by this Court, was covered in the present case. In fact on reading the judgment of the High Court it is apparent to us that the learned judge has re-weighed the evidence from his own point of view and reached inferences contrary to those of the Sessions judge on almost every point. This we do not conceive to be his duty in dealing in revision with an acquittal when Government has not chosen to file an appeal against it. In other words, the learned Judge in the High Court has not attended to the rules laid down by this Court and has acted in breach of them." 32. In Akalu Ahir and Others Vs. Ramdeo Ram, , Hon''ble apex Court observed as under:-

"This Court then proceeded to observe that the High Court is certainly entitled in revision to set aside the order of acquittal even at the instance of private parties, though the State may not have thought fit to appeal, but it was emphasized that this jurisdiction should be exercised 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." In face of prohibition in Section 439(4), Cr.P.C., for the High Court to convert a finding of acquittal into one of conviction, it makes 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 re-trial. No doubt, in the opinion of this Court, no criteria for determining such exceptional cases which would cover all contingencies for attracting the High Court''s power of ordering re-trial can be laid down. This Court, however, by way of illustration, indicated the following categories of cases which would justify the High Court in interfering with a finding of acquittal in revision:

(i) Where the trial Court has no jurisdiction to try the case, but has still acquitted the accused;

(ii) Where the trial Court has wrongly shut out evidence which the prosecution wished to produce;

(iii) Where the appellate Court has wrongly held the evidence which was admitted by the trial Court to be inadmissible;

(iv) Where the material evidence has been over-looked only (either?) by the trial Court or by the appellate Court; and

(v) Where the acquittal is based on the compounding of the offence which is invalid under the law.

These categories were, however, merely illustrative and it was clarified that other cases of similar nature can also be properly held to be of exceptional nature where the High Court can justifiably interfere with the order of acquittal. In Mahendra Pratap Singh Vs. Sarju Singh and Another, the position was again reviewed and the rule laid down in the three earlier cases reaffirmed. In that case the reading of the judgment of the High Court made it plain that it had re-weighed the evidence from its own point of view and reached inferences contrary to those of the Sessions Judge on almost every point. This court pointed out that it was not the duty of the High Court to do so while dealing with an acquittal on revision, when the Government had not chosen to file an appeal against it. "In other words" said this Court, "the learned Judge in the High Court has not attended to the rules laid down by this Court and has acted in breach of them."

Similar view was reiterated by Hon''ble apex Court in Bansi Lal and Others Vs. Laxman Singh, .

Again, Hon''ble apex Court, in Ramu alias Ram Kumar and others, 1995 Supreme Court Cases (Cri) 181, held that it is well settled that the revisional jurisdiction conferred on the High Court should not be lightly exercised particularly when it has been invoked by a private complainant. In Vimal Singh Vs. Khuman Singh and Another, and in Bindeshwari Prasad Singh @ B.P. Singh and Others Vs. State of Bihar (Now Jharkhand) and Another, , the High Court has been reminded of its very limited jurisdiction in revision against acquittal.

Considering that in the present case, occurrence had taken place in the year 2005, and the appellant Sandeep Tanwar had already completed sentence of ten years, and the view formulated by the trial Court is one which is possible on the facts of the case, we are convinced that counsel for the petitioner has failed to make out a case to exercise our revisional jurisdiction.

As a result of above discussion, we dismiss S.B. Criminal appeal No. 86/2009 preferred by Sandeep Tanwar, husband of Rekha by upholding conviction and sentence. We also dismiss Criminal Revision Petition No. 1529/2008 preferred by Bal Gopal Verma, father of Rekha, deceased to assail the acquittal of accused Sandeep Tanwar for offence under Section 302 IPC.