Punjab-Haryana High Court
Rajinder Parsad Jindal vs Nutan And Ors on 3 September, 2014
Author: K.C.Puri
Bench: K.C.Puri
CRR No. 1837 of 2007 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRR No. 1837 of 2007
Date of decision 03 .09.2014.
Rajinder Parsad Jindal
...... Petitioner.
versus
Nutan and others
...... Respondents.
CORAM :- HON'BLE MR.JUSTICE K.C.PURI.
1. Whether Reporters of Local Newspapers may be allowed to
see the judgment? yes
2. To be referred to the Reporters or not? yes
3. Whether the judgment should be reported in the Digest? yes
Present : Mr. Daldeep Singh, Advocate for the petitioner.
Mr. Yogesh Gupta, Assistant Advocate General, Punjab.
Mr. Bipan Ghai, Senior Advocate with
Mr. V.S.Virk, Advocate for respondent No.1.
K.C.PURI, J.
Complainant-petitioner-Rajinder Parsad Jindal has directed the aforesaid revision petitions against the judgment dated 22.12.2006 passed by Shri S.C.Goyal, Additional Sessions Judge, Panipat vide which the accused-respondents were acquitted from the charges levelled against them in case FIR No.73 dated 03.03.2005 under Sections 304-B, 302, 34 of the IPC after giving them benefit of doubt.
2. The brief facts of the prosecution case are that Nutan son of CRR No. 1837 of 2007 2 Ramesh Chand aged 30 years, Ramesh Chand son of Lakhi Ram aged 57 years and Kela Devi wife of Ramesh Chand aged 51 years i.e the accused have faced trial for the commission of an offence punishable under Sections 498-A.304-B and 302 read with Section 34 of the Indian Penal Code for subjecting Savita being husband and parents-in-law to cruelty and harassment with a view to coerce her to meet their unlawful demand for dowry and subjecting her to cruelty of such a nature as was likely to drive her to commit suicide, causing her unnatural death within seven years of marriage and in the alternative, committing her murder with a common intention on 02.03.2005 within the area of HUDA, Panipat. Brief facts of the case are that Rajinder Parsad PW-1 is son of Kishori Lal and is resident of Mohala Rampura, Hisar. He was having three daughters including the deceased and a son. His daughter Savita was married on 14.01.2001 with accused Nutan son of Ramesh Chand resident of Panipat. A sufficient amount was spent on her marriage but her parents-in-law were not satisfied with the dowry articles. After 5/6 months of the marriage, her in-laws demanded cash and in pursuant to which, a sum of rs.20,000/- and Rs.30,000/- respectively was given in cash. But despite that, his daughter was being harassed by the accused for money. Savita deceased told about that fact a number of times to the complainant on telephone. Though he tried to make understand the in-laws of his daughter of his position, but without any result. Even he sent his son Rajesh Kumar-PW2 to the in-laws of his daughter but without any positive result. About ten days prior to the occurrence, his daughter came to see him and told about the demand of Rs.2lacs by her in-laws for purchasing a car. The complainant was unable CRR No. 1837 of 2007 3 to fulfill that demand. So, he sent back his daughter. However, on 02.03.2005, a telephonic message was received from Satish about death of his daughter. When the complainant along with others reached the matrimonial home of his daughter, then they informed him that she died due to heart attack. But his daughter was having some bluish marks on her neck. So, it was suspected that she was done to death by her in-laws by pressing her neck. A statement dated 03.03.2005 Ex.PA in this regard was made by Rajinder Parsad complainant with the police and which led to registration of formal FIR Ex.PA/2 after making an endorsement Ex.PA/1., investigation commenced. The dead body of Savita was sent for post mortem and a report in this regard Ex.PE was obtained. Proceedings under section 174 Cr.P.C as Ex.PE/2 were also conducted. The accused was arrested and one of them namely Nutan Kumar made a disclosure statement Ex.PH and on the basis of which, he got recovered cable Ex.P7, which was taken into possession vide seizure memo Ex.PJ. Inspector Bhagat Singh-PW8 moved an application Ex.PE/3 before PW-6 Dr.S.K.Gupta for taking opinion about possibility of death of Savita with the use of that cable. PW-6 Dr.S.K.Gupta along with Dr.Jai Prakash gave opinion Ex.PE/4. Rough site plan Ex.PG was prepared. The site of incident was got photographed and photographs Ex.P3 to Ex.P5 were collected. A scaled site plan of the place of occurrence Ex.PC was prepared. Statements of witnesses were recorded. After investigation, challan against the accused was presented in court.
3. On appearance of the accused, copies of documents as relied upon by the prosecution were supplied to the accused. Charge was framed against the accused under Sections 498-A and 304-B IPC and in the CRR No. 1837 of 2007 4 alternative under Section 302 read with Section 34 IPC, to which the accused pleaded not guilty and claimed trial.
4. In order to prove its case, prosecution examined Rajinder Prasad as PW-1, Rajesh Kumar as PW-2, ASI Ashok Kumar as PW-3, C. Jagbir Singh as PW-4, ASI Krishan Chander as PW-5, Dr. S. K. Gupta as PW-6, HC Sushil Kumar as PW-7 and Inspector Bhagat Singh as PW-8 and closed the evidence.
5. Statements of all the accused under Section 313 Cr.P.C. were recorded and all the incriminating evidence were put to them, to which they pleaded innocence and false implication. A specific plea was taken by accused Nutan that the deceased was living happily in her matrimonial home and was being treated with love and affection. She was never harassed by any person on any count much or less with regard to dowry. It was further pleaded that since father and brother of deceased Savita were earlier abducted a year prior to the occurrence, she was under mental tension. He further pleaded that he had been distributing free homeopathic medicines to a number of patients on the prescription of Dr. Raj Kumar Pandove, District Revenue Officer (retired), Haryana.
6. It was pleaded by accused Ramesh and Kela Devi that deceased Savita was living happily in her matrimonial home and was being treated with love and affection. It was further pleaded that deceased and their son were maintaining separate kitchen and were residing in upper portion of the house. Even their son was having separate business.
7. In defence, they examined Satbir Singh, Registration Clerk, Anil Kumar, Public Relation inspector, Raj Kumar Pandove, Charat Singh, CRR No. 1837 of 2007 5 Dev Raj, Gian Singh, Record Keeper Sessions Court, Hisar, Rajiv Kumar, Tax Assistant, Surender Kumar Soni, CTO, Panipat and Ashok Kumar, Tax Assistant and closed the evidence after tendering certain documents.
8. Ther trial court after hearing the learned counsel for the parties acquitted the accused from the charges levelled against them vide judgment dated 22.12.2006.
9. Feeling dissatisfied with the aforesaid judgment, the complainant-petitioner has directed the present revision petition.
10. I have heard learnerd counsel for the parties and have gone through the records of the case with their able assistance.
11. Learned counsel for the petitioner-complainant has submitted that finding recorded by the trial Court that it is a case of hanging is wrong on the face of it. It is submitted thatthe doctor has categorically given an opoinion that it is a case of strugulation. Learned counsel for the petitioner- complainant has further submitted that revision petition has been filed against Nutan husband and no request has been made for challenging the acquittal of parents of Nutan.
12. Learned counsel for the petitioner-complainant has further submitted that fact remains that it is an unnatural death within seven years of marriage of deceased with Nutan. Nutan has made a demand of Rs.20,000/- to Rs.30,000/- and has further raised a demand of Rs.2,00,000/- for purchase of car. So, all the ingredients of offence under Section 304-B, of the IPC are made out against Nutan beyond reasonable doubt.
13. Learned counsel for the petitioner-complainant has further CRR No. 1837 of 2007 6 submitted that nodoubt, the High Court while exercising the revisional powers cannot convert the finding of acquittal into conviction but in view of authority Kumar etc. Etc vs. Karnataka Industrial Cop. Bank Ltd and another reported in 2013(2) Recent Apex Judgments (R.A.J. ) page 572, this court can remand the case for re-trial or for re-hearing after setting aside the finding of the trial Court. So, in view of the authority Kumar etc. Etc.'s (supra), the revision petition may be accepted and the case may be sent back to the trial Court for re-hearing.
14. Shri Bipan Ghai, counsel for the respondent has supported the judgment of the trial Court. It is submitted that the Courts are meant to advance the cause of justice and have to decide the case on the basis of evidence avbailable on the file. The statement of the doctor is not binding on the court, moreso, when he has admited in the cross-examination that from the evidence on the file, it cannot be a case of hanging. Regarding demand of dowry, it is submitted that trial Court has properly appreciated the facts of the case and reached to the conclusion that prosecution has failed to prove the demand of dowry, muchless soon before the death of the deceased.
15. Counsel for the respondent No.1 has further submitted that scope of interference in revision is very limited as envisaged in authority Venkatesan vs. Rani and another reported in 2013 (6) Recent Apex Judgments (R.A.J.) page 342.
16. Again the Hon'ble Apex Court in authority Bindeshwari Prasad Singh @ B.P.Singh and others vs. State of Bihar (Now CRR No. 1837 of 2007 7 Jharkhand) and anotherrt reported in 2002 (4) R.C.R. (Criminal) page 61 (SC) held that the High Court cannot reappreciate the evidence in revision and can interfere with revision only in case there is miscarriage of justice. There is nothing on the file to show that there is miscarriage of justice. He has also relied upon authority Swai Ram vs. Guddu alias Dawood and others reported in 2005 (3) R.C.R. (Criminal) page 233 (P&H).
17. Hon'ble Apex Court in authority Venkatesan's case (supra) has held that in following catetgorties of caess High court would be justified in intefering in the finding of acquittal in revision, although these categories are merely an illustrative :-
(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.
(vi) 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 rvisional jurisdiction.
(vii) 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 retrial 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 acquiittal into one of CRR No. 1837 of 2007 8 conviction. 1973 (2) SCC 583, 1998 (4) RCR (Crl.) 423, relied.
18. There is no dispute to the said propostiion of law that while exercising the power under Sections 397 and 401 of the Cr.P.C., this court cannot convert the finding of acquittal into conviction. However, in case judgment is perverse or there is miscarriage of justice, in that case, this Court can accept the revision and sent the case for retrial or re-hearing.
19. Now, the question arises whether on the facts of the present case, interference in the present revision is made out or not ? The answer to that question is in negative.
20. No doubt, the categories mentioned above, laid down in Venkatesan's case (supra) are illustrative in nature but these categories almost covered in most of the cases. The case of the petitioner-complainant does not fall with the parameter laid down in these illustratives. It is not the case of the petitioner that trial Court has no jurisdiction to try the case. It is also not the case of the petitioner that trial Court has wrongly shut out the evidence which the proseciution wished to produce. It is also not the case of the petitioner that Appellate Court has wrongly held the evidence which was admitted by the trial Court to be inadmissible or the material evidence has been overlooked by the trial Court. The compounding of offence has not been allowed by the trial court. In the said authority it has been categorically held that re-appreciation of the evidence should be restriced by the High Court while examining an order of acquittal in exercise of its revisional jurisdiction.
CRR No. 1837 of 2007 9
21. `Again this court in Bindeshwari Prasad Singh @ B.P.Singh and others' case (supra) held that High Court should not re-appreciate the evidence in revision while setting aside the order of acquittal and ordering of re-trial, except in exceptional cases to prevent gross miscarriage of justice.
22. Similar view was taken by this Court in Swai Ram's case (supra).
23. The trial Court after appreciating the evidence of the doctor reached to the conclusion that it is a case of hanging and not strangulation. That finding is based upon the appreciation of statement of the Doctor. The doctor even in the cross-examination has stated that possibility of death in the present case by hanging is not ruled out. However, on a Court question that was put to the doctor that in the examination in chief he has stated that it can be a case of strangulation whereas in the cross-examination the doctor has stated that it can be a case of hanging, so, to which of the version the doctor strict. The doctor has no option except to strict to his earlier version that death in this case can be result of strangulation. The defence counsel wanted to cross-examine the doctor but the trial Court has not allowed the defence counsel to cross-examine the said witness. However, the trial Court has committed a grave error by not allowing the defence to cross-examine on material point whether the death has taken place on account of strangulation or hanging.
24. Otherwise also, the supporting evidence given by the doctor make out a case more favourable in respect of hanging rather strangulation. In normal circumstances in case of strangulation, the ligature mark is on CRR No. 1837 of 2007 10 whole of the neck unless the strangulation is on expert advise whereas in the present case, ligature mark was absent on the back of the neck and some part of the lateral aspect. As per Modi Chapter 19 page 456 in case of strangulation there is fracture of larynx treachea and hyoid bone whereas in case of hanging it is very rare. In the present case, larynx treachea and hyoid bone was not found fractured. In hanging scratches, abrasions and bruises on the face, neck and other parts of the body are usually not present whereas in the case of strangulation scratches, abrasions fingernail marks and bruises on the face, neck and other parts of the body usually present.
25. In the present case also there was no abrasion on any part of the body of deceased and moreover the bangles found on the dead body were found intact. So, the case tilt towards the probability of hanging. So, the finding recorded by the trial Court that it is a case of hanging is not perverse and as such the same does not call for any interference.
26. Now reverting to the finding of fact recorded by the trial court to the effect that prosecution has failed to prove the demand of dowry articles is also based upon the circumstantial evidence and keeping in view the confrontation of the material witnesses. Otherwise also, the complainant and his son have made allegation of demand of dowry against Nutan and his parents in the original version but during the course of trial the complainant and his son have totally exonerated the parents of Nutan. On the same set of evidence, two accused have been acquitted by the trial Court. The fact that Bonds were purchased in the name of Savita deceased and she was made nominee in respect of bonds purchased in the name of Nutan goes a long way to prove that demand of dowry is not possible. The main demand CRR No. 1837 of 2007 11 is stated to be in respect of Rs.20,000/- and Rs.30,000/- for purchasing television, fridge etc whereas son of complainant has stated that television and fridge etc were already given in the marriage. It has come on the record that family of the accused has advanced an amount of Rs.6,50,000/- to the complainant family much prior to the occurrence. So, in these circumstances, the trial Court reached at a definite conclusion that prosecution has failed to prove the demand of dowry articles. That finding of fact cannot be said to be perverse or based upon no evidence. There is nothing on the file to prove that the trial court has misread and misinterpreted the evidence on the file.
27. So far as the authority Kumar etc. Etc's case (supra) is concerned, High Court while exercising revisional powers can set aside the order of acquittal and order re-trial or re-hearing the case but the circumstances prescribed in the said ruling are not there in the case in hand. The saids interference can only be made by this Court only if the judgment of the trial Court is perverse or against law. There is nothing on the record that judgment of the trial Court is perverse and against law.
28. No other point has been raised or urged before me.
29. Consequently, the revsion petition has no merit and the same stands dismissed.
30. A copy of this judgment be sent to the trial Court for strict compliance.
( K.C.PURI ) JUDGE September 03 , 2014 sv