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Dinesh vs S.J. Banda And Others on 13 April, 2020

HIGH COURT OF JUDICATURE AT ALLAHABAD

Reserved on 16.11.2019

(In Court No.34)

Delivered on 13.04.2020

(At Residence)

Case :- CRIMINAL REVISION No. – 846 of 1997

Revisionist :- Dinesh

Opposite Party :- S.J. Banda And Others

Counsel for Revisionist :- I.K. Chaturvedi (Senior Advocate), Rupesh Kumar Mishra

Counsel for Opposite Party :- Govt. Advocate, Ashok Gupta

Hon’ble Sudhir Agarwal,J.

1. Aggrieved by judgment and order dated 02.05.1997 passed by Sri Vikram Jeet Singh, learned Sessions Judge, Banda, in Sessions Trial No.164 of 1996, complainant Dinesh has filed this revision under Section 397/401 Cr.P.C. By impugned judgement, accused-respondents-2 and 3, namely, Balram @ Pappu and Smt. Kalawati have been acquitted of the offences under Sections 304B and 498A IPC.

2. Facts, in brief, giving rise to present criminal revision may be stated as under.

3. A written report dated 25.02.1996 (Ex.Ka-1) was sent to Superintendent of Police, Banda (hereinafter referred to as “S.P., Banda”) stating that marriage of Rani Devi, niece of Informant PW-1 Dinesh (Revisionist herein) had been solemnized in May, 1993 with Pappu @ Balram according to Hindu customs and rites. Informant-Revisionist had also given Rs.50,000/- in dowry. Son-in-law of Informant-Revisionist and his mother had been pressing hard for meeting their demand of gold chain, Rs.10,000/- cash, one buffalo, anchal etc. as gift, but Informant and his family members expressed inability to give aforesaid articles. When demand of additional dowry/ gift was not fulfilled, niece of Informant-Revisionist was subjected to cruelty and mental harassment. Though, in order to reconcile the matter, Panchayat had also taken place several times but accused opposite parties-2 and 3 i.e. husband of Rani and her mother-in-law did not mend themselves and committed murder of Rani Devi and in order to give colour to the incident as commission of suicide, they fabricated the circumstances. In fact, they have murdered victim as their demand for dowry was not satisfied. One Kallu, resident of village of accused persons, went to the father of deceased and apprised him of entire incident whereafter father of deceased along with Revisionist, Dinesh, went to accused’s house and found Rani dead. A broken rope was found encircled around her neck. Several villagers collected at the spot informed prosecution side that deceased had been subjected to beating by accused-respondents in the afternoon on account whereof she died. An effort was made by deceased’s father to lodge report of the incident at Police Station concerned but report was not lodged. Police insisted upon the father of deceased to accept that deceased had committed suicide and not murdered. Thereafter, a written report (Ex.Ka-1) was prepared by Revisionist, Dinesh, and sent to S.P., Banda. Pursuant to orders passed by S.P. Banda, said application was treated as First Information Report (hereinafter referred to as “FIR”) and investigation commenced. PW-4 Dr. Dharamveer Singh, Deputy S.P., Banda was entrusted investigation of case who visited the spot and prepared site plan. PW-6 Bhagwan Das Gupta, Naib Tehsildar, Baberu, Banda, had gone to the spot before registration of case and got Inquest (Ex.Ka-7) prepared through someone in the village. He had also sealed the dead body of deceased and sent the same to District Hospital for postmortem.

4. Autopsy on the dead body of deceased was conducted by PW-5 Dr. A.K. Bhardwaj, who found four contusions around head region and one contusion on the face. He also found a contusion mark across the neck from left angle of mandible, extended upto right angle of mandible, 5 cm below chin. According to Doctor, death was caused due to ante mortem injuries. He also prepared postmortem report (Ex.Ka-6).

5. After conclusion of investigation, PW-4 Dr.Dharamveer Singh Investigating Officer (hereinafter referred to as “I.O.”) submitted charge-sheet (Ex.Ka-5) before Chief Judicial Magistrate, Banda who took cognizance of the offence on 30.03.1996. Since the case was triable by Court of Sessions, it was committed to Sessions Court on 18.06.1996. It was registered as Sessions Trial No. 164 of 1996.

6. Charge was framed by Sessions Judge, Banda on 03.07.1996 against accused opposite parties Balram @ Pappu and Smt. Kalawati which reads as under:-

^^eSa] fodze thr flag] l U;k;k/kh’k] ckank

vki]

1- cyjke mQZ iIiw

2- Jherh dykorh

ij fuEufyf[kr vkjksi yxkrk gwWa%

1- ;g fd fnukad 24-2-1996 dks le; vKkr] vius edku fLFkr xzke cM+kxko] Fkkuk fclaMk] ftyk ckank esa Jherh jkuh nsoh dh ‘kknh ds lkr lky ds vUrxZr ekjihV dj vLokHkkfod e`R;q dkfjr vkSj vkRegR;k dk ekeyk cukus ds fy, e`frdk ds xys esa jLlh cka/kdj yk’k dks nhoky ds lgkjs fVdk fn;k vkSj vki yksxksa us e`frdk ds ifr cyjke mQZ iIiw ,oa e`frdk dh lkl Jherh dykorh us fj’rsnkj gksrs gq;s e`R;q ds iwoZ ngst esa nks rksyk lksus dh tathj o 10][email protected] :i;k dh ekax dhA bl izdkj vki yksxksa us ngst gR;k dk vijk/k fd;k] tks Hkkjrh; n.M lafgrk dh /kkjk 304 ¼ch½ ds vUrxZr n.Muh; vijk/k gS rFkk ftldk laKku ysus dh vf/kdkfjrk bl U;k;ky; dks izkIr gSA

2- ;g fd mijksDr frfFk] LFkku o le; ij vki yksxksa us e`frdk Jherh jkuh nsoh ds fj’rsnkj gksrs gq, ngst dh voS/k ekax dks ysdj e`R;q ds iwoZ Jherh jkuh nsoh dks izrkfM+r fd;k vkSj bl izdkj vki yksxksa us ,slk dk;Z fd;k tks Hkkjrh; n.M lafgrk dh /kkjk 498 , ds vUrxZr n.Muh; vijk/k gS rFkk ftldk laKku ysus dh vf/kdkfjrk bl U;k;ky; dks izkIr gSA

,rn~ }kjk eSa funsZ’k nsrk gwWa fd vki yksxksa ds fo:) mDr vkjksi dk fopkj.k bl U;k;ky; }kjk fd;k tkosA**

“I, Vikram Jeet Singh, Sessions Judge, Banda charged you Balram @ Pappu and Smt. Kalawati as follows:

That on 24.02.1996, you caused unnatural death of Rani Devi in your house situate in Village Badagaon, P.S. Bisanda, District Banda within seven years of her marriage by inflicting injuries to her and manipulated the same as suicide by tying a rope around her neck and laid her with support of the wall. Accused Balram @ Pappu being husband and Smt. Kalawati being mother-in-law made a demand of gold chain of two tolas and Rs.10,000/- cash as dowry. Thus, you both have committed the offence of dowry death which is an offence punishable under Section 304B IPC and is within the cognizance of this Court.

That on the aforesaid date, place and time, you despite being relatives of Rani Devi, for fulfilment of demand of dowry, caused ante mortem injuries and subjected Rani Devi to cruelty and thereby you committed an offence punishable under Section 498A IPC which is within cognizance of this Court.

You are hereby directed to be tried by this Court for the aforesaid charges.”

(Emphasis Added)

7. The charges were read over and explained to accused persons who pleaded not guilty and demanded trial.

8. Prosecution, in support of its case, examined, in all, eight witnesses. Out of them, PW-1 Dinesh is the Informant and uncle of deceased Rani Devi; PW-2 Raj Karan is father of deceased; PW-3 Vidyadhar is brother of deceased’s mother. PW-1, PW-2 and PW-3 are witnesses of fact and rest are formal witnesses. PW-5 Dr.A.K. Bhardwaj who had conducted autopsy over the dead body of deceased has also proved postmortem report (Ex.Ka-6). PW-6 Bhagwan Das Gupta, Naib Tehsildar, Bhabheru had prepared Inquest. Since he did not remember the name of persons who had prepared Inquest Report, it was marked as material Exhibit-3. Constable Balram Sharma who had taken dead body of Rani Devi to District Hospital for autopsy, has been examined as PW-7. PW-8 Constable Moharrir Ali Hasan had registered the FIR on the basis of Written Report (Ex.Ka-1) and prepared Chik Report. He had also made relevant entry in General Diary. PW-4 Dr.Dharamveer Singh I.O., had proved relevant documents and charge-sheet.

9. Accused opposite parties were examined by learned Sessions Judge, under Section 313 Cr.P.C., who denied prosecution allegations and contended to have been falsely implicated due to enmity. He pleaded alibi at the time of death of his wife and stated that he was out in village Bilathu in connection with preparation of High School examination. Second accused Smt. Kalawati has stated that she was in the field and came to the spot after death of her daughter-in-law Rani. Accused persons also examined Munni as DW-1 in defence. She has stated that she was going to fetch water from tap and saw that some unknown persons were escaping from the house of accused by scaling walls. She has also stated that when she called villagers after seeing unknown persons escaping at that time, accused persons were not present there. She also denied presence of rope around the neck of deceased. There were no ornaments over the neck, nose and legs of deceased. She has also stated that marriage had taken place at about eight years back.

10. After hearing learned counsel for parties and appreciation of evidence available on record, learned Sessions Judge acquitted accused-respondents-2 and 3, namely, Balram @ Pappu and Smt. Kalawati from the offences under Sections 304B and 498A IPC.

11. Feeling dissatisfied, complainant has filed this revision against order of acquittal.

12. Heard Sri I.K. Chaturvedi, learned Senior Counsel assisted by Sri Rupesh Kumar Mishra, learned counsel for revisionist and learned AGA for State of U.P.

13. Learned counsel for revisionist contended that Court below has omitted to consider relevant material which proved beyond doubt the complicity of accused opposite parties and, therefore, it has recorded finding perverse resulting in acquittal which needs be set aside.

14. He has taken this Court through entire evidence in detail and I propose to consider the same accordingly.

15. The only question up for consideration in this revision is “Whether Trial Court has committed manifest error and recorded a perverse finding or ignored relevant material or evidence causing acquittal of accused opposite parties or not.”

16. Record shows that Informant Dinesh and Raj Karan, father of deceased claimed to have received information about the death of Rani Devi from one Kallu. Raj Karan, father of Rani Devi claimed to have lodged report to In-charge Police Station Bisanda, Banda on 25.02.1996 in which he did not mention about the murder of Rani Devi by accused opposite parties but said that as per information, she has committed suicide. This document is Ext.Ka-1 and reads as under:-

^^fuosnu gS fd esjk uke jktdju gS eSa xzke feyk;w dk jgus okyk gwWa esjh yM+dh jkuh nsoh ftldh ‘kknh ebZ lu~ 1993 bZ esa iIiw mQZ cyjke iq txUukFk fuoklh cM+kxkao ds lkFk gqbZ Fkh ftldh mez 1516 o”kZ dy fnukad 24-2-96 dks ‘kke 6 cts ;g lwpuk feyh fd rqEgkjh yMdh jkuh QkWalh yxkdj vkRe gR;k dj fy;k gS ;g lwpuk esjh yM+dh ds llqjky ds ifjokj ds dYyw jke us nh eSa viuh yMdh dh llqjky cM+kxkao x;k esjh yM+dh esjh gqbZ iM+h gS lwpuk dks vk;k gwWa dk;Zokgh djus dh d`ik djsA**

“It is humbly submitted that my name is Raj Karan. I belong to the vill-Milayu. My daughter Rani Devi who was married to Pappu @ Balram S/o Jagannath R/o Badagaon in May 1993, and whose age was around 15-16 years; we received an information yesterday on 24.2.96 around 6.00 p.m. that your daughter Rani has committed suicide. This information was delivered to us by one Kallu Ram from the family members of my daughter’s in-laws. I went to the in-law’s house of my daughter viz. Badagaon. My daughter is laying dead there. I have come here to give information. May kindly take necessary action.”

(English Translation by Court)

17. Informant’s report was not lodged by Police. Thereafter, he (Informant-Dinesh) moved an application before S.P., Banda in which he stated that Rani Devi has been murdered and under the order of S.P., Banda, FIR was registered. It could not be explained as to when PW-2 Raj Karan, father of deceased had received information about the murder of Rani Devi, why he mentioned suicide in the document Ext.Ka-1. This aspect remained unexplained. PW-1 and PW-2 admittedly are not eyewitnesses. PW-2 has made improvement in his statement over what he has mentioned in the report dated 25.02.1996 (Ex.Ka-1). The reason for this variation in his statement remained unexplained. The third person Vidyadhar was examined as PW-3 who claims to be an eyewitness of the incident but he is not the person who informed about death of Rani Devi to her parents as this information was received from one Kallu whose wife was examined as DW-1 and she categorically said that she had seen that some unknown persons escaping from the house of opposite parties and, therefore, death has been caused by those unknown persons.

18. Trial Court has, therefore, rightly drawn inference that subsequent report lodged after a long time was an afterthought. What was written by PW-2 himself in Ext.Ka-1 in his earlier application which according to him was not lodged by Police Station concerned his subsequent stand is contrary thereto. Inquest Report was not proved. Though PW-1 claimed that when he reached spot, a rope was found encircled around the neck of deceased but PW-3 when reached the spot, did not find any such rope. In the Inquest Report also, cause of death has been mentioned as death due to hanging and not murder by hanging.

19. It is in these circumstances, when there was material variation in the evidence, Trial Court has not found prosecution case as proved beyond reasonable doubt so as to justify conviction and sentence of accused opposite parties. Statement of PW-3, in my view, is also doubtful for the reason that his presence has not been disclosed at the first instance when report was lodged by PW-2 Raj Karan in which he mention about the suicide of Rani Devi and not murder. Therefore, it is difficult to hold that finding recorded by Trial Court is perverse so as to justify interference in this revision, to reverse the findings of acquittal.

20. Scope of judicial review in a case of acquittal is double loaded. The judicial review in exercise of revisional jurisdiction is not like an appeal. It is a supervisory jurisdiction which is exercised by the Court to correct the manifest error in the order(s) of subordinate Court(s) but should not be exercised in a manner so as to turn the Revisional court in a Court of Appeal. The legislature has differently made provisions for appeal and revision and the distinction of two jurisdictions has to be maintained.

21. Construing old Section 437 of Criminal Procedure Code, 1898, pertaining to revisional jurisdiction, the Court in D. Stephens Vs. Nosibolla, AIR 1951 SC 196 said that revisional jurisdiction under Section 439 of the Code ought not to be exercised lightly particularly when it is invoked by private complainant against an order of acquittal which could have been appealed against by the Government under Section 417. It could be exercised only in exceptional cases where the interests of public justice require interference for the correction of a manifest illegality, or the prevention of a gross miscarriage of justice. In other words, the revisional jurisdiction of the High Court cannot be invoked merely because the lower court has taken a wrong view of law or misappreciated the evidence on record.

22. In K. Chinnaswamy Reddy Vs. State of Andhra Pradesh, AIR 1962 SC 1788 it was held that revisional jurisdiction should be exercised by the High Court in exceptional cases only when there is some glaring defect in the procedure or a manifest error on a point of law resulting in flagrant miscarriage of justice. However, this was also a case in which revisional jurisdiction was invoked against an order of acquittal. If the Court lacks jurisdiction or has excluded evidence which was admissible or relied on inadmissible evidence or material evidence has been overlooked etc., then only this Court would be justified in exercising revisional power and not otherwise.

23. The above view has been reiterated in Mahendra Pratap Singh Vs. Sarju Singh, AIR 1968 SC 707; Khetrabasi Samal Vs. State of Orissa, AIR 1970 SC 272; Satyendra Nath Dutta and another Vs. Ram Narain, AIR 1975 SC 580; Jagannath Choudhary and others Vs. Ramayan Singh and another, 2002(5) SCC 659; and, Johar and others Vs. Mandal Prasad and another, 2008 Cr.L.J. 1627 (S.C.).

24. In Duli Chand Vs. Delhi Administration, 1975(4) SCC 649 the Court reminded that jurisdiction of High Court in criminal revision is severely restricted and it cannot embark upon a re-appreciation of evidence. While exercising supervisory jurisdiction in revision the Court would be justified in refusing to re-appreciate evidence for determining whether the concurrent findings of fact reached by learned Magistrate and Sessions Judge was correct.

25. In Pathumma and another Vs. Muhammad, 1986(2) SCC 585 reiterating the above view the Court said that in revisional jurisdiction the High Court would not be justified in substituting its own view for that of a Magistrate on a question of fact.

26. In Munna Devi Vs. State of Rajasthan and another, 2001(9) SCC 631 the Court said:

“The revision power under the Code of Criminal procedure cannot be exercised in a routine and casual manner. While exercising such powers the High Court has no authority to appreciate the evidence in the manner as the trial and the appellate courts are required to do. Revisional powers could be exercised only when it is shown that there is a legal bar against the continuance of the criminal proceedings or the framing of charge or the facts as stated in the First Information Report even if they are taken at the face value and accepted in their entirety do not constitute the offence for which the accused has been charged.”

27. In Ram Briksh Singh and others Vs. Ambika Yadav and another, 2004(7) SCC 665, in a matter again arising from the judgment of acquittal, revisional power of High Court was examined and the Court said:

“4. Sections 397 to 401 of the Code are group of sections conferring higher and superior courts a sort of supervisory jurisdiction. These powers are required to be exercised sparingly. Though the jurisdiction under Section 401 cannot be invoked to only correct wrong appreciation of evidence and the High Court is not required to act as a court of appeal but at the same time, it is the duty of the court to correct manifest illegality resulting in gross miscarriage of justice.”

28. Having heard learned counsel for the revisionist and gone through the impugned judgment, I do not find any manifest error or otherwise illegality so as to warrant interference with the judgement in question.

29. Revision lacks merit and is accordingly dismissed.

30. Certify this judgment to the Lower Court immediately.

Order Date :- 13.04.2020

Siddhant Sahu

 

 

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