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No case was made out under sec.498 A, 304 B and 302 of I.P.C. = In view of the specific case of the prosecution that the accused had poured kerosene on the deceased and thereafter set her on fire and had gagged her mouth with a piece of cloth to prevent her from screaming, which version has been unfolded by PWs 1, 2, 3 and 4, it is difficult to see as to how the charge against the accused-appellant under Section 304-B of the IPC could be sustained. The evidence of PW-12 Thiru Subramaniyam, Investigating Officer of the case, that the investigation did not reveal any harassment and ill-treatment of the deceased by the accused prior to her death makes the prosecution case against the accused under the aforesaid Section as well as under Section 498A of the IPC wholly unsustainable. Insofar as the offence under Section 302 of the IPC is concerned, there is no eye witness to the occurrence. PWs-1 to PW-4 though examined as eye witnesses cannot be understood to have actually witnessed any of the events that would be crucial for the determination of the liability of the accused-appellant. By the time they had reached the place of occurrence the deceased was already engulfed in flames. The fact that PW-6 had stated that the deceased had come to his clinic unaccompanied by PWs 1, 2, 3 and 4 who in their depositions have claimed otherwise is too significant a contradiction to be ignored. There is a further contradiction in the evidence of PWs 1 and 2 on the one hand and PW-12 on the other. According to PW-1 and PW-2 they had made a complaint to the police station immediately after the occurrence and thereafter went to the hospital whereas PW-12 had deposed that the complaint was lodged after PW-1 and PW-2 had returned from the hospital. The evidence of PW-10 Dr. N.Usha that the deceased herself had stated that she was injured due to bursting of the stove while she was cooking casts a further doubt on the prosecution story. The absence of the proof of seizure of the material objects, made by the Mahazar (Exh. P-10) and the contradiction between the oral testimony and the contents of Exh. P-9 with regard to the actual place of occurrence, in our considered view, further demolishes the credibility of the prosecution version. In the above facts the view taken by the Trial Court in acquitting the accused cannot be held to be a view impossible of being reached. We, therefore, allow this appeal, set aside the order of the High Court dated 27.04.2006 and restore the order of acquittal dated 16.07.2003 passed by the learned Trial Court.

PUBLISHED IN     http://judis.nic.in/supremecourt/imgst.aspx?filename=40660   

REPORTABLE

IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.462 OF 2008

Venkatesan … Appellant(s)
Versus
Rani & Anr. … Respondent(s)

 

J U D G M E N T

RANJAN GOGOI, J.

1. What are the true contours of the jurisdiction vested in the High
Courts under Section 397 read with Section 401 of the Code of Criminal
Procedure, 1973 (hereinafter for short ‘the Code’) while examining an
order of acquittal passed by the Trial Court? Whether the principles
governing the exercise of the aforesaid jurisdiction have been rightly
determined by the High Court in the present case and, therefore, had been
correctly applied to reverse the order of acquittal of the accused-
appellant passed by the learned Trial Court and to remit the matter to the
said Court for a de novo disposal, is the further question that arises in
the present appeal filed against an order dated 27.04.2006 passed by the
High Court of Judicature at Madras.

2. The appellant is the husband of one Anusuya who, according to the
prosecution, was put to death by the appellant on 19.4.2000 by pouring
kerosene on her and thereafter setting her on fire. The marriage between
the appellant and the deceased took place sometime in the year 1998 on the
own accord of the parties. According to the prosecution, after the
marriage, the appellant raised demands for various dowry items including
cash. As such demands were only partially met by the parents of the
deceased the appellant, according to the prosecution, harassed and ill
treated the deceased and eventually caused her death on 19.4.2000. On the
basis of the aforesaid facts alleged by the prosecution, the accused-
appellant was put to trial for commission of offences under Sections 498A,
304-B and 302 of the Indian Penal Code. The Trial Court, on the grounds
and reasons assigned, which will be duly noticed, acquitted the accused-
appellant. Aggrieved, the mother of the deceased invoked the revisional
jurisdiction of the High Court to challenge the acquittal. By the impugned
judgment and order dated 27.04.2006 the High Court held that the order of
acquittal passed by the learned Trial Court suffered from certain inherent
flaws which justified a reversal of the same and for remission of the
matter for a fresh decision in accordance with law and the directions set
out in the said order of the High Court.

3. We have heard Mr. K.K. Mani, learned counsel for the appellant and
Mr. M. Yogesh Kanna, learned counsel appearing for the State.

4. Learned counsel for the appellant has submitted that the acquittal of
the accused-appellant made by the learned Trial Court is based on a full
and complete consideration of the evidence and materials on record. It is
submitted that cogent reasons have been assigned by the learned Trial Court
in support of the acquittal ordered by it. It is also contended that the
High Court has erroneously taken the view that the order of the learned
Trial Court lacks clarity on the vital aspects of the case as outlined in
the order of the High Court dated 27.04.2006. All the issues highlighted
by the High Court in its order dated 27.04.2006 have, in fact, been dealt
with by the learned Trial Court. The reversal of the acquittal by the High
Court is, therefore, contended to be wholly unjustified.

5. Opposing the contentions advanced on behalf of the accused-appellant,
learned counsel for the State has urged that no acceptable basis for the
impugned acquittal is evident in the order of the learned Trial Court.
Learned counsel has supported the findings recorded by the High Court by
contending that there is lack of clarity and absence of categorical
findings on vital issues of the case which makes it imperative that the
impugned order of remand made by the High Court by its order dated
27.04.2006 be maintained. No interference with the same would be justified.

6. To answer the questions that have arisen in the present case, as
noticed at the very outset, the extent and ambit of the revisional
jurisdiction of the High Court, particularly in the context of exercise
thereof in respect of a judgment of acquittal, may be briefly noticed. The
law in this regard is well settled by a catena of decisions of this Court.
Illustratively, as also chronologically, the decisions rendered in
Pakalapati Narayana Gajapathi Raju vs. Bonapalli Peda Appadu[1], Akalu Ahir
v. Ramdeo Ram[2], Mahendra Pratap Singh v. Sarju Singh[3], K. Chinnaswamy
Reddy v. State of A.P.[4] and Logendranath Jha v. Polai Lal Biswas[5] may
be referred to. Specifically and for the purpose of a detailed
illumination on the subject the contents of paras 8 and 10 of the judgment
in the case of Akalu Ahir v. Ramdeo Ram (supra) may be usefully extracted
below.
“8. 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 overlooked 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.”
“10. No doubt, the appraisal of evidence by the trial Judge in the
case in hand is not perfect or free from flaw and a Court of appeal
may well have felt justified in disagreeing with its conclusion,
but from this it does not follow that on revision by a private
complainant, the High Court is entitled to re-appraise the evidence
for itself as if it is acting as a Court of appeal and then order a
re-trial. It is unfortunate that a serious offence inspired by
rivalry and jealousy in the matter of election to the office of
village Mukhia, should go unpunished. But that can scarcely be a
valid ground for ignoring or for not strictly following the law as
enunciated by this Court.”

The observations in para 9 in the case of Vimal Singh v. Khuman
Singh[6] would also be apt for recapitulation and, therefore, are being
extracted below.
“9. Coming to the ambit of power of the High Court under Section
401 of the Code, the High Court in its revisional power does not
ordinarily interfere with judgments of acquittal passed by the
trial court unless there has been manifest error of law or
procedure. The interference with the order of acquittal passed by
the trial court is limited only to exceptional cases when it is
found that the order under revision suffers from glaring illegality
or has caused miscarriage of justice or when it is found that the
trial court has no jurisdiction to try the case or where the trial
court has illegally shut out the evidence which otherwise ought to
have been considered or where the material evidence which clinches
the issue has been overlooked. These are the instances where the
High Court would be justified in interfering with the order of
acquittal. Sub-section (3) of Section 401 mandates that the High
Court shall not convert a finding of acquittal into one of
conviction. Thus, the High Court would not be justified in
substituting an order of acquittal into one of conviction even if
it is convinced that the accused deserves conviction. No doubt, the
High Court in exercise of its revisional power can set aside an
order of acquittal if it comes within the ambit of exceptional
cases enumerated above, but it cannot convert an order of acquittal
into an order of conviction. The only course left to the High Court
in such exceptional cases is to order retrial.”

7. The above consideration would go to show that the revisional
jurisdiction of the High Courts while examining an order of acquittal is
extremely narrow and ought to be exercised only in cases where the Trial
Court had committed a manifest error of law or procedure or had overlooked
and ignored relevant and material evidence thereby causing miscarriage of
justice. Re-appreciation of evidence is an exercise that the High Court
must refrain from while examining an order of acquittal in the exercise of
its revisional jurisdiction under the Code. Needless to say, if within the
limited parameters, interference of the High Court is justified the only
course of action that can be adopted is to order a re-trial after
setting aside the acquittal. As the language of Section 401 of the Code
makes it amply clear there is no power vested in the High Court to convert
a finding of acquittal into one of conviction.

8. In the present case, the prosecution had examined as many as 12
witnesses. PW-1 Thiru Srinivasan is the father of the deceased whereas PW-
2 Thirumathi Rani (petitioner before the High Court) is the mother. Both
the aforesaid witnesses had stated in their depositions that there was no
demand for dowry by the accused and that the accused and deceased had
married on their own volition. The two witnesses had further stated that
whatever was given by them as dowry items was voluntary. Insofar as demand
for cash (allegedly made on three different occasions) is concerned, PW-1
and PW-2 could not account for the source from which the aforesaid payments
were allegedly made. PW-1 Thiru Srinivasan and PW-2 Thirumathi Rani are
admittedly not eye witnesses to the occurrence because they had come to the
house where the accused and the deceased had lived only after noticing
smoke from the said house. PW-3 Thiru Vincent (brother-in-law of the
deceased) and PW-4 Thirumathi Mary (sister of the deceased) are also not
eye witnesses to the occurrence. It must also be taken note of that all
the aforesaid witnesses, i.e., PW-1 to PW-4 had deposed that when they had
reached the house of the deceased they saw her in flames and the deceased
was unable to speak as there was a piece of cloth in her mouth. The
aforesaid part of the prosecution story, however, does not find support
from the testimony of PW-11 Dr. Santhakumar who had conducted the
postmortem of the deceased inasmuch as in cross-examination PW-11 had
clearly stated that he did not find any blisters in the mouth of the
deceased. PW-5 Thiru Balaraman did not sign the mahazar (Exh. P-10)
showing the seizure of a burnt kerosene can, a partially burnt saree and a
matchbox allegedly recovered from the place of occurrence. PW-6 Dr.
Prakash had deposed that the deceased was brought to his clinic at about
7.30 a.m. on 19.4.2000 but considering the burn injuries suffered he had
referred the case to the government hospital. PW-7 Dr. Vijayalakshmi had
deposed that though a magistrate had come to the hospital to record the
dying declaration, the deceased was unconscious and not in a position to
make any statement. PW-10 Dr. N. Usha who was working in the casualty
section of the Chennai Kilpauk Government Hospital had deposed that when
questioned, the deceased Anusuya had reported to her that she got injured
due to bursting of the stove while she was cooking. PW-11 Dr.
Santhakumar had conducted the postmortem and the most significant part of
his evidence has already been noticed hereinabove, namely, that he did not
find any blisters in the mouth of the deceased. PW-12 Thiru Subramaniyam
is the Investigating Officer of the case who had, inter alia, deposed that
the investigation did not disclose that the accused had harassed or ill-
treated the deceased Anusuya prior to her death.

9. In view of the specific case of the prosecution that the accused had
poured kerosene on the deceased and thereafter set her on fire and had
gagged her mouth with a piece of cloth to prevent her from screaming, which
version has been unfolded by PWs 1, 2, 3 and 4, it is difficult to see as
to how the charge against the accused-appellant under Section 304-B of the
IPC could be sustained. The evidence of PW-12 Thiru Subramaniyam,
Investigating Officer of the case, that the investigation did not reveal
any harassment and ill-treatment of the deceased by the accused prior to
her death makes the prosecution case against the accused under the
aforesaid Section as well as under Section 498A of the IPC wholly
unsustainable. Insofar as the offence under Section 302 of the IPC is
concerned, there is no eye witness to the occurrence. PWs-1 to PW-4 though
examined as eye witnesses cannot be understood to have actually witnessed
any of the events that would be crucial for the determination of the
liability of the accused-appellant. By the time they had reached the place
of occurrence the deceased was already engulfed in flames. The fact that
PW-6 had stated that the deceased had come to his clinic unaccompanied by
PWs 1, 2, 3 and 4 who in their depositions have claimed otherwise is too
significant a contradiction to be ignored. There is a further
contradiction in the evidence of PWs 1 and 2 on the one hand and PW-12 on
the other. According to PW-1 and PW-2 they had made a complaint to the
police station immediately after the occurrence and thereafter went to the
hospital whereas PW-12 had deposed that the complaint was lodged after PW-1
and PW-2 had returned from the hospital. The evidence of PW-10 Dr. N.
Usha that the deceased herself had stated that she was injured due to
bursting of the stove while she was cooking casts a further doubt on the
prosecution story. The absence of the proof of seizure of the material
objects, made by the Mahazar (Exh. P-10) and the contradiction between the
oral testimony and the contents of Exh. P-9 with regard to the actual place
of occurrence, in our considered view, further demolishes the credibility
of the prosecution version. In the above facts the view taken by the Trial
Court in acquitting the accused cannot be held to be a view impossible of
being reached. Keeping in mind the extremely limited keyhole available
for a scrutiny of the foundation of the order of acquittal passed by the
learned Trial Court the reversal ordered by the High Court does not commend
to us. We have also noticed that the High Court had found the order of the
learned Trial Court to be vitiated by lack of clarity on several counts as
specified in its order dated 27.04.2006. The said deficiencies, when
juxtaposed against the reasoning of the learned Trial Court, appear to have
been adequately answered by the learned Trial Court in the light of the
evidence and the material brought before it.

10. For the aforesaid reasons we find it difficult to accept the
conclusion reached by the High Court in the present matter. We, therefore,
allow this appeal, set aside the order of the High Court dated 27.04.2006
and restore the order of acquittal dated 16.07.2003 passed by the learned
Trial Court.

…………………………CJI.

 
……………………………J.
[RANJAN GOGOI]
New Delhi,
August 19, 2013.

———————–
[1] (1975) 4 SCC 477
[2] (1973) 2 SCC 583
[3] AIR 1968 SC 707
[4] AIR1962 SC 1788
[5] AIR 1951 SC 316
[6] (1998) 7 SCC 223

———————–
14

 

 

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