Allahabad High Court
Paras Nath Yadav vs State Of U.P. & Others on 21 March, 2012
Author: Dinesh Gupta
Bench: Dinesh Gupta
HIGH COURT OF JUDICATURE AT ALLAHABAD RESERVED AFR Case :- CRIMINAL REVISION No. - 1758 of 2003 Petitioner :- Paras Nath Yadav Respondent :- State Of U.P. & Others Petitioner Counsel :- D.S. Pandey Respondent Counsel :- Govt. Advocate Hon'ble Dinesh Gupta,J.
This revision is preferred against the judgment and order dated 2.5.2003 passed by the Additional Sessions Judge (Fast Track Court No.1), Jaunpur in Sessions Trial No.88 of 1997 (State Versus Subhash and others) acquitting the accused opposite parties u/ss.498A, 304 B and 201 I.P.C. and Sections 3/4 Dowry Prohibition Act.
The prosecution case in brief is that a First Information Report was lodged by complainant Paras Nath Yadav the revisionist on 1.3.1996 at Police Station Machhli Shahar, District-Jaunpur that the marriage of his daughter Pramila Devi aged 22 years was performed in May, 1990 and sufficient dowry was given at the time of marriage. In April, 1993 his daughter went to her in law's house and when she returned to her house she told the complainant and other family members that her husband and other in-laws have demanded motor cycle. The complainant tried to persuade the accused persons and sent his daughter to her in-law's house. On 25.2.1996 one Awadhesh Yadav who is related to accused Subhash informed the complainant that his daughter had expired and when the complainant enquired he was informed by some neighbours that his daughter had expired after consuming some poisonous substance and she was cremated without any information to the complainant.
After investigation charge sheet was submitted against accused opposite parties no.2 to 4 who were committed to the court of Sessions to face trial u/ss. 498A, 304 B and 201 I.P.C. and Sections 3/4 Dowry Prohibition Act. After framing charges, the accused opposite parties were tried and the evidence was recorded. The son of the complainant was examined as P.W.1, complainant was examined as P.W.2, the Investigating Officer Hari Shankar Yadav was examined as P.W.3 and constable Rajendra Prasad Dwivedi was examined as P.W.4. In defence the accused persons examined Awadhesh Narayan Yadav as D.W.1 and Dr. Mansha Ram Singh, Medical Officer of Primary Health Centre, Baraipar, Machhli Shahar, District- Jaunpur was examined as D.W.2 and also produced the marriage card of the deceased and the papers relating to her treatment.
After hearing learned counsel for the parties, the learned Sessions Judge acquitted the accused persons from the charges levelled against them vide judgment and order dated 2.5.2003.
Feeling aggrieved with the aforesaid judgment and order, the complainant has preferred this revision.
At this stage, learned A.G.A. informed the court that the State has not filed any appeal against the order of acquittal by the Sessions Judge. The office has also reported that no Government Appeal has been filed relating to the same case crime number.
Heard learned counsel for the revisionist and the learned counsel appearing for accused-opposite parties no.2 to 4 as well as learned Additional Government Advocate.
Learned counsel for the revisionist submitted that the order dated 2.5.2003 passed by learned Additional Sessions Judge is wholly illegal and against the law and facts and is liable to be set aside. The learned trial Judge has mis-interpreted the evidence lead by prosecution and wrongly relied upon false and forged defence evidence.
Learned counsel for the revisionist further submitted that the complainant was not informed by the accused persons regarding the death of his daughter and she was cremated in absence of the complainant or his family members which clearly shows mala fide intention of the accused persons and this fact was established by the prosecution that deceased was cremated without any information to the complainant. The prosecution has clearly established the demand of dowry by the accused persons and the deceased was subjected to cruelty relating to demand of dowry but the trial court has illegally and arbitrarily passed the impugned judgment without considering this aspect of the matter.
Learned counsel for the accused opposite parties submitted that the prosecution and the complainant have completely failed to establish their case beyond reasonable doubt in order to bring the case within the ambit of Section 304-B of Indian Penal Code. For this the prosecution has to establish that the death of the deceased was caused within seven years of the marriage; secondly the death of a woman must have been caused by burns or bodily injury or occurs otherwise than in normal circumstances; thirdly soon before her death the woman must have been subjected to cruelty or harassment by her husband or any relative of her husband. Therefore, the cruelty must be for or in connection with 'dowry death' and it is only when the aforementioned ingredients are made out that such death can be called dowry death. In the present case, the prosecution has clearly failed to stablish that the death of the woman had occurred within seven years of her marriage; that the death was not under normal circumstances; that there was cruelty by the husband or his family members before the death and that such cruelty was in connection with demand of dowry. Learned Sessions Judge has given categorical finding on all the aforesaid ingredients and has negated the prosecution version.
Learned counsel further submitted that under the revisional power the High Court has no jurisdiction to interfere with the findings recorded by the trial court or to re-appreciate the evidence specially when the said jurisdiction was invoked by a private complainant. He further submitted that Section 401-B Cr.P.C. clearly prohibits conversion of finding of acquittal into one of conviction. In support of his contention, he relied on Sheetala Prasad and others vs. Sri Kant and others (2010) 2 Supreme Court Cases (Criminal) 1002, Jagannath Choudhary and others vs. Ramayan Singh and another 2002 Supreme Court Cases (Criminal) 1181, Balijeet Singh and another vs. State of Haryana 2004 Supreme Court Cases (Criminal) 692 and Johar and others vs. Mangal Prasad and another (2008) 2 Supreme Court Cases (Criminal) 89.
Before entering into merits of the revision the scope of interference by the High Court in revision against an order of acquittal is to be looked into. Section 401 Cr.P.C. Deals with the powers of the High Court in revision.
"401. High Court's powers of revision - (1) In the case of any proceedings the record of which has been called for by itself or which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a Court of Appeal by Sections 386, 389, 390 and 391 or on a Court of Session by Section 307 and, when the Judges composing the Court of revision are equally divided in opinion, the case shall be disposed of in the manner provided by Section 392.
(2) No order under this section shall be made to the prejudice of the accused or other person unless he has had an opportunity of being heard either personally or by pleader in his own defence.
(3) Nothing in this section shall be deemed to authorise a High Court to convert a finding of acquittal into one of conviction.
(4) Where under this Code an appeal lies and no appeal is brought, no proceeding by way of revision shall be entertained at the instance of the party who could have appealed.
(5) Where under the Code an appeal lies but an application for revision has been made to the High Court by any person and the High Court is satisfied that such application was made under the erroneous belief that no appeal lies thereto and that it is necessary in the interests of justice so to do, the High Court may treat the application for revision as a petition of appeal and deal with the same accordingly".
In Jagannath Choudhary (supra) the court while dealing with the powers of the revisional court relied upon earlier judgments of supreme court in K.Chinnaswamy Reddy v. State of A.P. AIR 1962 SC 1788 and D.Stephens v. Nosibolla AIR 1951 SC 196 which clearly formulates the extent of jurisdiction by the revisional court.
In D. Stephens (supra) the apex court observed as under:-
"The revisional jurisdiction conferred on the High Court under S.439 of the Code of Criminal Procedure is not to be lightly exercised when it is invoked by a private complainant against an order of acquittal, against which the Government has a right of appeal under S.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. This jurisdiction is not ordinarily invoked or used merely because the lower Court has taken a wrong view of the law or misappreciated the evidence on record".
The apex court also relied upon Logendranath Jha v. Polai Lal Biswas AIR 1951 SC 316 in which the court observed as below:-
"Though sub-s.(1) of S.439 of the Criminal Procedure Code authorises the High Court to exercise in its discretion any of the powers conferred on a Court of appeal by S.423, yet sub-s.(4) specifically excludes the power to 'convert a finding of acquittal into one of conviction'. This does not mean that in dealing with a revision petition by a private party against an order of acquittal, the High Court can in the absence of any error on a point of law reappraise the evidence and reverse the findings of facts on which the acquittal was based, provided only it stops short of finding the accused guilty and passing sentence on him by ordering a re-trial".
These two cases clearly law down the limits of the jurisdiction of the High Court to interfere with an order of acquittal in revision. In particular Logendranath Jha (supra) it was held that it is not open to a High Court to convert a finding of acquittal into one of conviction in view of the provisions of Section 439(4) Cr.P.C. and that the High Court cannot do this even indirectly by ordering retrial.
The court further held that it is true that it is open to a High Court in revision to set aside an order of acquittal even at the instance of private persons, though the State may not have thought fit to appeal, but this jurisdiction should be exercised by the High Court only in exceptional cases specially 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. Sub section(4) of Section 439 Cr.P.C. forbids a High Court from converting a finding of acquittal into one of conviction.
Thus, relying on the decisions of Logendranath Jha, D. Stephens and Chinnaswamy Reddy (supra) the apex court in Jagannath Choudhary (supra) held in para 10 as under-
"10.While it is true and now well-settled in a long catena of cases that exercise of power under Section 401 cannot but be ascribed to be discretionary - this discretion, however, as is popularly informed has to be a judicious exercise of discretion and not an arbitrary one. Judicial discretion cannot but be a discretion which stands "informed by tradition, methodised by analogy and disciplined by system" - resultantly only in the event of a glaring defect in the procedural aspect or there being a manifest error on a point of law and thus a flagrant miscarriage of justice, exercise of revisional jurisdiction under this statute ought not to be called for. It is not to be lightly exercised but only in exceptional situations where the justice delivery system requires interference for correction of a manifest illegality or prevention of a gross miscarriage of justice. In Nosibolla : Logendranath Jha and Chinnaswamy Reddy (supra) as also in Thakur Das (Thakur Das (Dead) by LRs v. State of Madhya Pradesh and Anr., 1978 (1) SCC 27) this Court with utmost clarity and in no uncertain terms recorded the same. It is not an appellate forum wherein scrutiny of evidence is possible; neither the revisional jurisdiction is open for being exercised simply by reason of the factum of another view being otherwise possible. It is restrictive in its application though in the event of there being a failure of justice there can said to be no limitation as regards the applicability of the revisional power."
In Sheetala Prasad and others (supra) the apex court in held as under:-
"12. This Court has heard the learned counsel for the parties at length and considered the evidence forming part of the record.
13. The High Court was exercising the revisional jurisdiction at the instance of a private complainant and, therefore, it is necessary to notice the principles on which such revisional jurisdiction can be exercised. Sub-section (3) of Section 401 of Code of Criminal Procedure prohibits conversion of a finding of acquittal into one of conviction. Without making the categories exhaustive, revisional jurisdiction can be exercised by the High Court at the instance of private complainant (1) where the trial Court has wrongly shut out evidence which the prosecution wished to produce, (2) where the admissible evidence is wrongly brushed aside as inadmissible, (3) where the trial Court has no jurisdiction to try the case and has still acquitted the accused, (4) where the material evidence has been overlooked either by the trial Court or the appellate Court or the order is passed by considering irrelevant evidence and (5) where the acquittal is based on the compounding of the offence which is invalid under the law. By now, it is well settled that the revisional jurisdiction, when invoked by a private complainant against an order of acquittal, cannot be exercised lightly and that it can be exercised only in exceptional cases where the interest of public justice require interference for correction of manifest illegality or the prevention of gross miscarriage of justice. In these cases, or cases of similar nature, retrial or rehearing of the appeal may be ordered."
In Johar and others (supra) the apex court observed that the State did not prefer any appeal against the judgment of the trial Judge. The revisional jurisdiction of the High Court in terms of Section 397 read with Section 401 Cr.P.C. is limited. The High Court did not point out any error of law on the part of learned trial Judge. It was not opined that any relevant evidence has been left out of its consideration or irrelevant material has been taken into consideration. The High Court not only entered into the merit of the matter but also analysed the depositions of all the witnesses. It sought to re appreciate the whole evidence. One possible view was sought to be substituted by another possible view. In this case the apex court also relied on Logendranath Jha and D. Stephens (supra).
From the above discussion, it is clear that the High Court has very limited revisional power particularly in the cases of revision by a private person against order of acquittal and in such cases where the State has not filed any appeal against the order of learned Sessions Judge. Now in the light of the above legal proposition the court has to see whether the judgment of the learned trial Judge suffers from any manifest illegality or gross miscarriage of justice. The learned Sessions Judge while dealing with the facts of the case gave a categorical finding that the death of the woman had not occurred within seven years of her marriage. This finding is based on the evidence lead by the defence. Initially the prosecution had not produced any evidence in respect of the date of marriage of the deceased and the accused. On the contrary, the defence produced the witness of marriage who was a middle man in the marriage. The witness also produced the marriage card which established that the marriage of the deceased with the accused was in fact performed on 16.05.1986 and relying on evidence of the defence the learned Sessions Judge has given a categorical finding that the death of the deceased had not occurred within seven years of marriage. This finding does not suffer from any illegality or there is wrong appreciation of evidence. It was the duty of the prosecution to rebut the evidence lead by the defence if they really wanted to controvert the evidence lead by the accused persons. But inspite of it they have not produced any evidence in rebuttal.
Insofar as the finding in respect of death of the deceased is concerned, the defence has examined the doctor who treated the deceased before her death and also filed the papers regarding treatment. The prosecution again failed to rebut the evidence lead by the accused persons and the learned Sessions Judge relying upon the evidence rightly gave a finding that the death of the deceased was not caused in abnormal circumstances.
In respect of demand of dowry, cruelty and harassment the court also came to the conclusion that the prosecution has not been able to prove the demand of dowry, harassment or cruelty towards the deceased. This finding is also based on appreciation of evidence lead by the prosecution. There is no mis-appreciation of evidence nor any evidence has been left to be considered by the trial Judge.
The sole ground raised by learned counsel for the revisionist is regarding absence of information of death of the deceased to the complainant or his family members, but the court relying upon the defence evidence, gave a categorical finding that the complainant was informed and he and other family members were present at the time of cremation of the deceased. This finding is based on appreciation of evidence and there is no reason to discard this finding. Thus, after going through the judgment and entire record of the case, the court is of the opinion that the findings recorded by the learned trial Judge are based on appreciation of evidence, there is no manifest illegality or blatant irregularity which lead to miscarriage of justice and there is no occasion for this court to interfere with the findings recorded by the trial court.
In view of the above discussions, the revision has no merits and it is accordingly dismissed.
21.03.2012 PK