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Judgment
P.B. Gaikwad, J.—Shakuntalabai Nilkanthrao Avchite, original complainant being dissatisfied with the order passed by the Additional Sessions Judge, Aurangabad dated 30.12.1993 in Sessions Case No. 303/1992, filed present petition.
The facts, in brief, leading to the present petition are that ;
The Petitioner Shakuntalabai Avchite is serving as a nurse at Ayurvedik College Hospital, at Nanded. Deceased Suchita was her daughter. She is also having two sons namely Sandip and Nitin. All of them including Suchita were residing at Nanded. In the year 1989-90 Sanjay present Respondent original Accused No. 1 and accused No. 2 Shakuntala w/o Manohar are related to the Complainant Shakuntala. It is alleged that, the marriage of Suchita was settled with the accused Sanjay in the year 1990, however, as there was some delay in fixing date for marriage and as there was some love affair between Suchita and accused Sanjay, somewhere in the month of July, 1990, Sanjay took Suchita to Aurangabad and thereafter registered marriage at the office of Registrar. It is further alleged that, the complainant thereafter arranged reception at Nanded on 25.11.1990. Some relatives were called. Sanjay thereafter took Suchita, after the said reception along with articles of present, to Aurangabad. It is further alleged that Suchita was residing with Sanjay at Aurangabad, however, on 15.3.1991 the complainant came to Aurangabad and took Suchita to Nanded on account of her ill health. It is also claimed that she was pregnant and period of gestation was approximately 3 months. It is alleged that on 23.3.1991 the present accused then came to Nanded in early morning, knock the door and made inquiry with the complainant about Suchita, then he entered in the room of Suchita beat her and thereafter took her out of the house. Thereafter, he along with Suchita came to Aurangabad. It is alleged that, on 29.3.1991 Complainant then came to Aurangabad at the house of Accused No. 1. Some exchange of words took place between complainant on one hand and Suchita and Sanjay on the other hand. The Complainant then returned to Nanded. On 20.4.1991 she received message about the burn injuries sustained by Suchita. She along with her son Sandip and one neighbour Babasaheb came to Aurangabad and saw the dead body of Suchita who sustained burn injuries. She then made report to the Police station, on the basis of which crime No. 100/1991 was registered for the offence u/s 498-A, 304-B of read with Section 34 of Indian Penal Code. The P.S.O. Police Station Chawani, Aurangabad then visited the place of incident, held inquest over the dead body and referred same for postmortem. The Medical Officer Ghati Hospital performed postmortem. P.S.I. During the investigation recorded certain statements, attached letters produced by the Complainant and after completing investigation submitted charge sheet against the accused before the Judicial Magistrate (First Class) on 18.8.1991.
The Judicial Magistrate (First Class) committed case to the court of Session as offence u/s 498-A and 306 of Indian Penal Code being exclusively triable by Court of session.
The Additional Sessions Judge, Aurangabad accordingly framed charge against the accused as per Exh. 4 on 12.10.1993 for the offence u/s 498-A, 306 of read with Section 34 of Indian Penal Code. Same was read over and explained to the accused. However, as they pleaded not guilty to the charge, prosecution has examined more than 5 witnesses to connect the accused with the above said crime. P.W. 1 is Shakuntala Complainant- mother of deceased Suchita, P.W.2 is Babasaheb Bhosir a neighbour who resides adjacent to the house of Complainant. P.W. 3 Sandip Avchit P.W. 4 is a Panch witness. P.W.5 is Investigating Officer. The prosecution along with application filed certain letters. The production of those letters is accordingly allowed. Even the prosecution by filing application u/s 294 called upon the defence to admit the genuineness and correctness of certain documents and the defence has not disputed the correctness of inquest panchanama Exh.10.
The defence has also filed certain letters on record with list on 22.11.1991 and those are at Exh. 25 and 26. Then certain other documents i.e. telegram and one letter those are article A to D and one news item published in daily newspaper "Marathwada" dated 28.4.1991 Exh.27.
The additional Sessions Judge after considering the evidence on record concluded that, the prosecution failed to prove that the accused committed offence u/s 498-A and 306 of Indian Penal Code and accordingly, acquitted the accused for the offence for which they were charged. The State has not challenged the findings of acquittal by filing appeal and, therefore, the original Complainant challenged the said order by filing present revision petition.
In the petition I heard Shri Mudhe advocate holding for Shri S.C. Bora, advocate for the petitioner and P.B. Patil, A.P.P. for Respondent No. 3 State. None appeared for original accused No. 1 and 2 present Respondents No. 1 and 2.
It is submitted by Shri Mundhe that the order of acquittal is not proper and justified. Firstly, according to him, from the evidence on record , more particularly, mother and brother of the deceased, it is sufficiently clear that there was ill-treatment to Suchita. Then it is contended that, when the accused visited the house of Complainant on 15.3.1991 Suchita was beaten and was taken to Aurangabad. It is further claimed that, there was unlawful demand as the accused and her mother were insisting that the Complainant should transfer their house at Aurangabad by way of Gift Deed and as the Complainant refused to transfer the said house property, ill-treatment was continued. It is also claimed that, even the marriage of Suchita with the accused No. 1 was postponed as even at that time the accused were insisting to transfer said house property. So far as regard other aspects, according to Shri Mudhe, that the prosecution has submitted one application to examine Doctor so as to ascertain whether Suchita met homicidal death or suicidal death however, said application has been rejected by the court below. Lastly, according to him, the appreciation of evidence is not proper. The findings recorded by the court below is perverse, illegal and therefore, according to him, order of acquittal needs to be set aside.
On the other hand it is submitted by Shri P.B. Patil, A.P.P. for State, that the revision filed by the Complainant itself is not maintainable. According to him, the State has not filed any appeal challenging the order of acquittal. So far as regards merits are concerned, it is submitted that the Additional Sessions judge has evaluated and scrutinised the evidence properly and, therefore there is no infirmity in the findings recorded by the Additional Sessions Judge.
Considering the submissions, it is now necessary to see whether the order passed by the Additional Sessions Judge acquitting the accused is proper and justified.
As referred above, the prosecution has examined 5 witnesses and out of which evidence of P.W.1 and P.W. 3 Sandip, mother and brother of the deceased is material. From the evidence of complainant certain letters are brought on record and relying on contents of those letters it is contended that, there was unlawful demand, ill-treatment. Certain inland letters are also on record at Exh. B.C.& D. I have gone through the contents of those letters. I find that, the Additional Sessions judge has also rightly appreciated the contents of those letters. So far as regards unlawful demand, the evidence of complainant and Sandip definitely is not satisfactory. As in fact, it is from the evidence on record that the accused No. 1 took Suchita from Nanded and registered marriage at Aurangabad and, thereafter both of them were residing at Aurangabad. There are certain letters alleged to be issued by the deceased and on bare perusal of contents there is no whisper about the ill-treatment. Even P.W.1 Complainant in her evidence has also stated that, she has not received any letter from Suchita about ill-treatment to her at the hands of accused. The accused No. 2 resides at Kerala and, therefore, when there is no positive evidence that at the relevant period accused No. 2 residing at Aurangabad along with Suchita and accused No. 1, in such circumstances ill treatment at the hands of accused No. 2 on account of unlawful demand also can not be gathered safely.
To prove the offence u/s 498-A it is necessary for the prosecution to prove that the acts on the part of the accused must fall either under Clause (a) or Clause (b) of Section 498-A and in the present case when there is no positive evidence about the ill-treatment either as referenced in clause (a) or unlawful demand on that count as referred in Clause (b). Therefore, I find that the conclusion arrived at by the Court below that the prosecution failed to prove offence u/s 498-A is definitely proper and justified. I do not find any infirmity in the said conclusion. I further find that, the Additional Sessions Judge has also scanned and evaluated the evidence on record properly.
The second aspect whether the findings, so far as regards offence u/s 306 is concerned, is proper and justified and for which a reference is necessary to the postmortem notes and the application filed by prosecution Exh. 35. The Defence has not disputed the correctness of other two documents i.e. Spot panchanama Exh. 29 and Postmortem Notes Exh. 32. On perusal of postmortem notes and more particularly column 17 it is seen that, Suchita sustained 100 % burn injuries and injures were antemortem in nature and the medical officer has given opinion as regards cause of death "due to burns". It seems that, as the correctness of postmortem notes are not disputed on behalf of the accused and, therefore the prosecution has not examined the Doctor who performed postmortem. As a matter of fact it was necessary to examine the Doctor but it seems that though the witness summons was issued and thereafter as defence has not disputed the correctness of postmortem notes, said Doctor is not examined. At any rate it is difficult to ascertain whether the burn injuries sustained by Suchita are accidental, suicidal or homicidal and in the absence of any positive evidence on record to that effect it is difficult to conclude that Suchita committed suicide. It is also necessary to mention that from the perusal of Complaint Exh. 26 crime is registered for offence u/s 498-A and for the offence u/s 304-B, but the Additional Sessions Judge while framing charge has considered the complaint and other material on record and framed charge u/s 498-A and 306 of Indian Penal Code. I have referred this particular aspect with a view that the prosecutor, to whom the particular matter was entrusted, should have insisted for framing charge u/s 304-B, but it seems that no steps are taken in that respect.
It is further seen that, the Additional Sessions Judge considering the evidence on record also acquitted the accused for the offence u/s 306 as there is material inconsistency in the evidence of Complainant and news published in the news paper Exh.26 which is at the instance of Complainant. Even there is material inconsistency in the evidence of Complainant so far as regards harassment, ill-treatment, unlawful demand and thus, I find that, the conclusion arrived at by the Court below acquitting the accused for the offence for which they were charged is definitely justified.
Lastly, this being a revision challenging the order of acquittal passed by the Additional Sessions Judge and only because some another view from the evidence on record is possible, the order of acquittal can not be interfered with or set aside when the view taken by the Additional Sessions Judge being reasonable, proper and acceptable. A references also necessary to one authority i.e. Awadhesh and Anr Vs. State of Madhya Pradesh, , wherein, it is observed to the following effect:
"Although the powers of the High Court to reassess the evidence and reach its own conclusion are as extensive as in an appeal against the order of conviction, yet, as a rule of prudence, the High Court should always give proper weight and consideration to matters i.e. (i) the view of the trial Judge as to the credibility of the witnesses; (ii)the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at the trial; (iii) the right of the accused to the benefit of any doubt, and (iv) the slowness of an appellate Court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses. If on appraisal of the evidence and on considering relevant attending circumstances it is found that two views are possible, one as held by the trial Court for acquitting the accused and the other for convicting the accused in such a situation the rule of prudence should guide the High Court not to disturb the order of acquittal made by the trial s Court. Unless the conclusions of the trial Court drawn on the evidence on record are found to be unreasonable, perverse or unsustainable, the High Court should not interfere with the order of acquittal."
Considering the ratio laid down in the said authority and considering the factual aspects in the present case I find that, the revision petition needs to be dismissed. Even it is also necessary to made it clear that, in Section 401(3) of Criminal Procedure Code, a bar is provided and the order of acquittal can not be converted into conviction while considering the revision. In the present case on reassessment of evidence on record I do not find that there is scope to remand the matter to the Additional Sessions Judge as the view taken by the Additional Sessions Judge is reasonable and proper.
In the result revision petition is dismissed. Accordingly revision is disposed off. Record and proceedings be sent back to the lower court.