Madras High Court
Ramasubbu vs Loganathan on 18 December, 2008
Author: P.R.Shivakumar
Bench: P.R.Shivakumar
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 18.12.2008 C O R A M THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR Crl.R.C.No.1514 of 2005 Ramasubbu ... Petitioner Vs. 1. Loganathan 2. State Rep. by the Deputy Superintendent of Police, Avinasi in Karumathampatti Police Station (Cr.No.60 of 2002) ... Respondents This Criminal Revision Case has been filed under Section 397 & 401 of Criminal Procedure Code to set aside the order dated 30.08.2005 made in S.C.No.52 of 2005 on the file of the learned Sessions Judge, Magalir Neethimandram, Coimbatore. For Petitioner : Mr.B.Pugalendhi For Respondents : Mr.K.Kalyanasundaram (R1) Mr.R.Muniapparaj, Govt Advocate (Crl.Side) O R D E R
This criminal revision case has been preferred under Section 397 and 401 of Criminal Procedure Code by the defacto complainant who was examined as P.W.1 in S.C.No.52 of 2005 on the file of Magalir Neethimandram (Mahila Court), Coimbatore against the judgment of the said court dated 30.08.2005 acquitting the first respondent herein/accused of the offences punishable under Sections 4 of the Dowry Prohibition Act and sections 498-A, 306 and 304-B of Indian Penal Code with which he stood charged, tried and ultimately found not guilty. The second respondent herein was the complainant (investigating officer) in the said case.
2. As the wife of the first respondent/accused by name Vijayalakshmi died of burns on 24.03.2002 at Thattampudur village within the jurisdiction of Karumathampatti police station, Coimbatore district, the petitioner herein/P.W.1 who is the father of the deceased lodged a complaint on 25.03.2002 on the file of the said police station expressing suspicion over the death of his daughter and a case was registered in Crime No.60/2002 on the file of the said police station under Section 174 Cr.P.C. As the death occurred within seven years from the date of marriage, the Revenue Divisional Officer conducted inquest and the Deputy Superintendent of Police conducted investigation altered the case into one for offences punishable under Sections 306, 304-B and 498-A IPC. On completion of investigation, the Deputy Superintendent of Police submitted a final report against the first respondent herein/accused, alleging commission of offences punishable under Sections 498-A, 306 and 304-B IPC and an offence punishable under Section 4 of Dowry Prohibition Act. After the case was committed to the court below, necessary charges were framed and a trial was conducted pursuant to the plea of not guilty made by the first respondent herein/accused.
3. In the trial eight witnesses were examined as P.W.1 to 8, ten documents were marked as Ex.P1 to P10 and seven material objects were marked as M.O.1 to M.O.7 on the side of the prosecution. On the other hand, one witness was examined as D.W.1 and one document was marked as Ex.D1 and no material object was marked on the side of the defence. After examining the accused under Section 313(i)(b), the court below heard the arguments advanced on either side and considered the evidence in the light of such arguments. Upon considering the evidence, the court below came to the conclusion that none of the charges was proved beyond reasonable doubt and accordingly pronounced a judgment holding the first respondent herein/accused not guilty of any offence and acquitting him. The above said judgment of the acquittal dated 30.08.2005 is sought to be challenged in this criminal revision case.
4. Before embarking upon a discussion regarding the contentions raised on either side in this criminal revision case, it shall be helpful to state the prosecution case briefly. It can be stated, in brief, as follows:-
i) The marriage of the first respondent herein with the deceased Vijayalakshmi was performed on 07.06.1998. At the time of their marriage the petitioner herein/P.W.1, the father of the deceased Vijayalakshmi gave 20 sovereigns of gold and Rs.15,000/- as dowry. After marriage, for about one year, the first respondent herein/accused was working in a sizing mill in Sankarankoil, during which period there was no problem between the husband and wife and they led a peaceful life. The brothers of the first respondent/accused were running a hotel at Kaniyur-Thattamputhur, Coimbatore District. With an intention to set up his residence near the residence of his brothers, the first respondent herein/accused went to Thattamputhur and thereafter was working in a sizing mill there. Initially when he went to Thattampudur seeking employment in the Sizing mill he had left his wife, namely deceased Vijayalakshmi, at Sankarankoil, Tuticorin district. Thereafter he arranged a house for their residence at Kaniyur-Thattampudur and took his wife to the said place.
ii) While so, the first respondent/accused demanded more jewels and money for investing the same in the hotel business run by his brothers and also for purchasing a motorcycle for his use. As his demand was not met with, he started ill treating the deceased Vijayalakshmi pursuant to which the deceased used to make frequent visits to her parents' house in Tuticorin district and on all such occasions she narrated the story how she was treated with cruelty. While so, on 24.03.2002 at about 10.00 p.m, the first respondent herein/accused contacted P.W.1 over phone and informed him that the deceased Vijayalakshmi was found missing. On hearing such a news P.W.1 went to Thattampudur on 25.03.2002 in the morning and visited the house in which his daughter was living. At that point of time the accused was not there. When he enquired the mother of the first respondent herein/accused, a neighbour informed him that the dead body of Vijayalakshmi was lying at a place called "Manthaikuttai" at a distance of one furlong from the house of the first respondent/accused. P.W.1 went to the said place, saw the charred dead body of Vijayalakshmi with extensive burns and lodged a complaint marked as Ex.P1 with the Inspector of police, marked as Ex.P1 at about 10.30 a.m on 25.03.2002.
iii) P.W.7 - the Sub-Inspector of police received the said complaint, prepared Ex.P7 - First Information Report and registered a case as indicated above under Section 174 Cr.P.C. Information was furnished to P.W.5 - Revenue Divisional Officer and P.W.8 - Deputy Superintendent of Police for conducting inquest and investigation respectively, as the death had occurred within seven years from the date of marriage. Thereafter P.W.5 - Revenue Divisional Officer conducted inquest before whom the parents of the deceased gave statements to the effect that there were harassments demanding dowry which had drove the deceased Vijayalakshmi to commit suicide. However, the Panchayatdars had opined that there was no dowry harassment and since the deceased was not able to bear a child for about four years from the date of marriage, she could have committed suicide by self-immolation. The autopsy of the dead body was conducted by P.W.4 - Medical Officer, who expressed the opinion in the postmortem certificate - Ex.P3 that the deceased appeared to have died of shock due to 100% third degree burns, between 16.00 to 20.00 hours prior to autopsy. The autopsy was conducted at 3.45 p.m on 25.03.2002. Pursuant to the final report of the Revenue Divisional Officer, marked as Ex.P5, the Deputy Superintendent of Police who was examined as P.W.8, altered the case into one for offences under Section 306, 304-B and 498-A IPC and for that purpose prepared Ex.P10 - Alteration Report and sent it to the court. During his investigation, he prepared Ex.P2 - Observation Mahazar, Ex.P8 - Rough sketch and seized articles M.O.1 to 7 (M.O.1-white colour plastic can, M.O.2-Burnt match sticks, M.O.3-without burnt match sticks 4, M.O.4-Burnt clothes, M.O.5-Burnt and without burnt Batti packet, M.O.6-Burnt soil and M.O.7-Torch light with cell). Further he recorded the statements of the witnesses, completed his investigation and submitted a final report as indicated supra.
5. Advancing arguments on behalf of the petitioner/P.W.1, Mr.B.Pugalendhi, learned counsel submitted that the court below committed a grave error in not believing the evidence of P.W.1 and 2 and eschewing their evidence in toto to come to the conclusion that the charges levelled against the first respondent herein/accused were not proved beyond reasonable doubt. Though the said witnesses happened to be the interested witnesses, the court should have applied the test of careful scrutiny before ever deciding to accept or reject their evidence; that the court below failed to apply the above said test properly to the evidence of P.W.1 and 2 and the rejection of their evidence as unreliable suffers from serious infirmity resulting in miscarriage of justice; that there had been a calculated attempt made by the investigating agency to screen the offender and the way in which evidence was led before the court below would establish the same; that the documents recovered by the investigating officer during investigation, namely letters written by the deceased to P.W.1 had not been brought on record and the same would not only show the failure on the part of the prosecuting agency to bring-forth all material evidence to the court but also the failure on the part of the court below to notice the said discrepancy and infirmity and that all the above said aspects would point out that there had been miscarriage of justice. According to the learned counsel for the petitioner/P.W.1, as there had been a miscarriage of justice due to the omission on the part of the investigating officer and a failure on the part of the court below find it out, the judgment of acquittal made by the court below suffers from serious defect and infirmity and for that reason alone the same should be set aside and either a re-investigation or a re-trial should be ordered.
6. On the other hand, the learned counsel for the first respondent/accused would contend that the High court, while exercising revisional powers under Section 401 Cr.P.C., should not ordinarily re-appraise the evidence; that in a revision against acquittal additional evidence cannot be allowed to be adduced to test the correctness of the judgment of the court below which is challenged in this revision; that even in an appeal against acquittal wherein re-appreciation of evidence is permitted, the appellate court should keep in mind that the innocence of the accused should be presumed and such a presumption shall be applied with more vigour and force in favour of an accused who has been found not guilty by the trial court; that as such the contention of the petitioner that there had been miscarriage of justice could not be accepted; that the appellate court or revisional court should not allow filling up of the lacuna in the prosecution case either by allowing additional evidence to be adduced or by ordering re-trial or re-investigation and that hence the revision should be dismissed. The learned counsel for the first respondent/accused contended further that the additional documents, namely the letters, allegedly written by the deceased to P.W.1 while she was alive, could not be looked into for the simple reason that neither P.W.1 nor P.W.2 adverted to the letters in their evidence; that the present attempt to introduce those letters, as if they were handed over to the investigating officer during investigation was nothing but a result of an after- thought to wreck vengeance on the first respondent with the active connivance and assistance of the police officers whose attempt to get a conviction in this case failed and that hence it is a fit case in which the prayer of the petitioner should be rejected, preferably with cost.
7. The learned Government Advocate (Criminal Side) for the 2nd respondent is quite non committal. This court gave its anxious considerations to the above said submissions made on either side. The materials available on record were also perused.
8. Let me first of all consider the case law relied on by the parties in this regard.
Judgments relied on by the petitioner:
In order to show that while exercising appellate jurisdiction, the High Court can direct fresh investigation, the learned counsel for the petitioner relied on the judgment of the Hon'ble Supreme court in Popular Muthiah Vs. State of Tamil Nadu reported in 2006 SAR (Criminal) 604. The observations made in the said judgment shall not apply to the facts of the case on hand. In the said case an appeal was filed by the convicted person. No charge sheet was filed in the said case against the appellant therein before the supreme court. However, in an appeal filed by the person who stood charged and convicted, the High court observed that all the eye witnesses referred to the name of the appellant therein, who was not prosecuted before the trial court, as the person who allegedly shouted to kill the deceased and left the scene leaving behind the convicted person who assaulted the deceased and that hence the Sessions Judge should have exercised his jurisdiction under Section 319 Cr.P.C. Based on such an observation, the High court directed a re-investigation to be conducted by CB-CID. When the matter reached the Supreme Court as the person against whom the re-investigation was ordered, preferred the appeal, the Supreme court expressed a view that in such circumstances the High Court was not correct in ordering re-investigation by CB-CID. The Supreme Court also held that such a power does not come within the purview of Section 482 Cr.P.C.
Judgments relied on by the respondents
a) The judgment of the Hon'ble Supreme court in Bansi Lal and others v. Laxman Singh reported in AIR 1986 Supreme Court 1721 is to the effect that the High Court's powers to set aside the orders of acquittal should be exercised sparingly.
b) In yet another case in Satyendra Nath Dutta and Anoter Vs. Ram Narain reported in (1975) 3 Supreme Court Cases 398, the Hon'ble Supreme Court held that the High Court misdirected itself in exercising its revisional powers in reversing the judgment of acquittal and ordering retrial as the acquittal of the accused therein, according to the view of the Supreme court, led to no miscarriage of justice.
c) In Pakalapati Narayana Gajapathi Raju and others Vs. Bonapalli Peda Appadu and Another reported in (1975) 4 Supreme Court Cases 477, the Hon'ble Supreme Court observed that in several decisions of the court expressed the following view: "it is settled law that the revisional jurisdiction, when invoked by a private complainant against an order of acquittal, ought not to be exercised lightly and that it can 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."
d) In the State of Rajasthan V. Daulat Ram reported in AIR 1980 SUPREME COURT 1314, the Hon'ble Supreme Court has expressed a view that the prosecution cannot be allowed to correct the lacuna at revisional or appellate stage.
e) Similarly in Bir Singh and others V. The State of Uttar Pradesh reported in AIR 1978 SUPREME COURT 59, the Hon'ble Supreme Court expressed a view that though an Appellate Court had power to take additional evidence in a suitable case but the discretion should not be exercised to fill up gaps or lacunae in the prosecution evidence. The court below observed as follows:
"It is well settled that though an Appellate Court has power to take additional evidence in a suitable case. Yet the discretion should not be exercised to fill up gaps or lacunae in the prosecution evidence."
f) In Akalu Ahir and others Vs. Ramdeo Ram reported in 1973 CRI.L.J.1404, the Supreme court made the following observations:-
" There is also another aspect of the matter. The High court has evaluated the evidence on the existing record. On re-trial the trial court will have to consider the evidence led at the re-trial and arrive at its conclusion on that record. The expression of opinion on the present evidence with respect to the commission of the alleged offence would not be binding and would, therefore hardly be relevant. But it may, nevertheless, leave an unconscious impression on the mind of the Court, holding the fresh trial. This aspect also seems to lend some support to the view that normally re-trial should not be ordered unless there is some infirmity rendering the trial defective."
g) A learned single judge of this court (Justice K.M.Natarajan) in S.Abboy Naidu V. R.Sundararajan and others reported in 1994 CRI.L.J.641 has also expressed a similar view that in a revision filed by private person against acquittal, interference can be made only in cases of manifest illegality, irregularity or miscarriage of justice and not merely on account of failure to appreciate evidence.
9. The arguments advanced by the learned counsel for the petitioner consists of two limbs in it. The first limb of the argument is that the court below committed a serious error in disbelieving and rejecting the evidence of P.W.1 and 2 for the simple reason that they, being the parents of the deceased, were interested witnesses. The second limb of the argument is that there was miscarriage of justice as the investigating agency suppressed the recovery of letters written by the deceased to P.W.1; that the production of the same would have clinchingly established the guilt of the accused and that the court below also failed to consider the said fact.
10. So far as the first limb of the argument is concerned, it is true that in cases of this nature we can expect the close relatives of the deceased alone to come forward to depose in favour of the prosecution version. But in the instant case, out of nine witnesses examined on the side of prosecution, P.W.1 and 2 alone have deposed to the effect that there was cruelty and harassment demanding dowry. Both the witnesses are none other than the parents of the deceased. As such though their evidence cannot be lightly discarded, their evidence must be put to the test of the careful scrutiny before accepting the same to be trustworthy. In this case, the court below has applied the test of careful scrutiny and upon such an application of the said test, it has come to the conclusion that their evidence in this regard are not trustworthy.
11. It shall be convenient to point out at this juncture certain aspects, which would justify such an inference made by the court below. P.W.1, on hearing the news over phone from the respondent/accused at about 10.00 p.m on 24.03.2002 that Vijayalakshmi was missing, rushed to Thattamputhur village and reached there at about 7.00 a.m on 25.03.2002. It is his evidence that when he went to the place of occurrence, the first respondent/accused was not found there. The first respondent/accused has come forward with a clear explanation that he and his mother were proceeding towards the native place of P.W.1 to find out whether deceased Vijayalakshmi would have gone there; that on their way to Tuticorin they contacted his brother from Madurai, whereupon they came to know that Vijayalakshmi was found dead and her body was lying at Manthaikuttai following which they returned back. The fact that he was very much available in the hospital at the time of the inquest made by P.W.5 - Revenue Divisional Officer and that his statement to the above effect was also recorded by the Revenue Divisional Officer would clearly show that his behaviour could not be cited as a reason for entertaining suspicion against him. At the first instance, as revealed from Ex.P1 - complaint and the statement of P.W.1 given before the Revenue Divisional Officer during inquest, P.W.1 seems to have expressed suspicion that his daughter could not have committed suicide and that she should have been done to death at her residence and then her body would have been charred at Manthaikuttai to make it appear as suicide. However, during trial, perhaps after coming to know that the doctor has given an opinion to the effect that the death was due to burn; P.W.1 changed his version and deposed to the effect that his daughter had committed suicide due to the cruelty and harassment to which she was subjected by accused. In this regard a vital discrepancy is found regarding the place and time at which the law was set in motion by lodging a complaint. According to the prosecution version and the evidence of P.W.7 - Sub-Inspector of police, P.W.1 went to the police station and lodged the complaint at about 10.30 a.m on 25.03.2002, based on which the case was registered. The endorsement found in Ex.P1 - complaint and the particulars found in Ex.P7 - First Information Report are to the effect that a written complaint was given by P.W.1. However, P.W.1 would admit during cross-examination that he gave the complaint only after the police reached the place wherein the dead body was found lying -
VERNACULAR ( TAMIL ) PORTION DELETED Therefore there is a reasonable doubt regarding the earliest documents setting law in motion in this case. The court below has also, on a proper appreciation, has expressed serious doubt in this regard. Further more the evidence of P.W.4 - Medical officer and Ex.P3 - Postmortem report clearly show that the death was due to burns and that the burning was antemortem.
12. The evidence adduced through P.W.1 and 2 would show that the deceased and the accused were living peacefully, for more than one year after their marriage, since during the said period the accused was employed in a sizing mill in Tuticorin district whereby the deceased was able to be within a short distance from the place of her parents. Though the said witnesses have given evidence to the effect that after the accused took his wife to Thattampudur the deceased used to make frequent visits to the place of her parents and on all such occasions she complained about the ill treatment made by her husband, there is an admission that at no point of time any complaint was given against the first respondent/accused regarding such cruelty or harassment. Even though an attempt was made to show that there had been a conciliation at the intervention of a close relation, the said mediator has not been examined.
13. It transpires from the evidence that out of the twenty sovereigns of gold jewels given by her parents, only ten sovereigns were left with the deceased Vijayalakshmi and the balance 10 sovereigns were with the parents of the deceased, namely P.W.1 and 2. It is their case that the first respondent/accused was demanding that the deceased should get back the jewels. Though there is evidence to the effect that the accused was asking his wife, the deceased, to get back the said ten sovereigns of jewels from P.W.1, there is no clear-cut evidence as to what actually was the cruelty and harassment. It is also obvious from the evidence of P.W.1 and 2 that they did not have faith in the accused and that is why they chose to keep with themselves ten sovereigns out of 20 sovereigns given to her daughter at the time of marriage. Under such circumstances, it is quite natural for a husband to advise his wife not to leave the said jewels to be retained by her parents and to get back the same.
14. Though P.W.1 and 2 might have taken a stand that the accused wanted money for investment in the hotel business run by the brothers of the accused and to purchase a motorcycle for his use, it is the clear admission that the accused was neither a partner in the hotel business nor a person looking after the management or any other affair of the hotel business and that he continued to be employed in a sizing mill. Further more, P.W.8 - Investigating officer, in his cross examination has clearly admitted that P.W.1, in the statement recorded under Section 161, did not say that the accused wanted 10 sovereigns of gold for making investment in the hotel run by his brothers. Contradiction in this regard was clearly elicited in the manner known to law. It is also the clear admission of P.W.2, the mother of the deceased, that till the death of her daughter Vijayalakshmi, nobody was informed of the alleged beating and harassment by her husband.
15. Apart from that there is also clear admission that on the date of occurrence, namely 24.03.2002, Valaikappu function of the accused brother's wife was held. It is the clear explanation of the accused that as he was baren for four years from the date of marriage, the deceased refused to attend the function and he alone had to attend the function; that only thereafter she was found missing and that later on he came to know that she committed suicide by self-immolation because she was unhappy over her inability to bear a child. The Panchayatdars examined by Revenue Divisional Officer during inquest have also clearly opined that there was no dowry demand, no harassment and no quarrel between the husband and wife and that the deceased appeared to have committed suicide on the date of Valaikappu function of the brother's wife of the accused as she was not able to bear a child for four years from the date of marriage. All these factors had contributed to the conclusion arrived at by the court below that P.W.1 and 2, out of frustration, had chosen to implicate the accused. Therefore, this court finds no defect or infirmity in the finding of the court below that the alleged harassment and cruelty demanding dowrty has not been proved beyond reasonable doubt.
16. The court below, on properly analysing the evidence has come to the correct conclusion that Vijayalakshmi, wife of the accused committed suicide by self-immolation. To say one has committed an offence of abetment of suicide, there must be inducement or aiding. In this case, there is no evidence to show that the accused, in any way helped or aided the deceased to commit suicide. Mere words spoken out of provocation will not amount to abetment of suicide. One can also said to have induced suicide by his conduct if he has made the life of the deceased so miserable so as to drive the deceased to commit suicide. In this case apart from the bald allegation that there was harassment, no evidence has been adduced to show what was the type of harassment. Therefore, the conclusion arrived by the court below that there was no direct evidence to prove that the accused committed abetment of suicide does not suffer from any defect or infirmity.
17. As death has occurred within seven years from the date of marriage, whether a presumption as to abetment of suicide can be drawn has to be considered in the light of Section 113-A of the Evidence Act. The mere fact that the woman has committed suicide within seven years from the date of marriage will not be enough to draw such a presumption. On the other hand, if it is established that her husband or a relative of her husband had subjected her to cruelty, then the court may draw such a presumption. The term used is "the court may presume having regard to all the other circumstances of the case". In this case, we have already seen that the finding of the court below that the prosecution failed to prove that the accused had subjected the deceased to cruelty and that there was a reasonable suspicion that the deceased would have committed suicide due to frustration because she was not able to bear the child for about four years after marriage, does not suffer from any illegality or infirmity. Hence the said finding cannot be interfered with in this criminal revision case. As such there is no possibility of drawing a presumption to the effect that the accused abetted the suicide of his wife Vijayalakshmi. The court below has correctly held so and hence there is no scope for interfering with the finding of the court below that the charge for an orrence under Section 306 Indian Penal Code has not been proved beyond reasonable doubt.
18. So far as the offence under Section 304 I.P.C. is concerned, to hold a person guilty of such offence, three ingredients must be proved. They are:
(1) the death must have occurred within seven years from the date of marriage;
(2) the death should have been caused by burns or bodily injury or should have occurred otherwise than under normal circumstances and (3) soon before her death the deceased should have been subjected to cruelty or harassment by her husband or any relative of her husband for or in connection with any demand for dowry.
19. In this case, the first two ingredients are proved to exist as the death was due to burns and it occurred within seven years of her marriage. The third ingredient has not been proved. It has not been proved beyond reasonable doubt that there had been cruelty or harassment soon prior to death demanding dowry. Therefore, the challenge made to the finding arrived at by the court below that the offence under Section 304-B I.P.C also is liable to be rejected. The other reasons assigned in the earlier part of this order learing to the conclusion arrived at by this court that the decisin of the court below regarding the other two offences, namely offences under Section 4 of the Dowry Prohibition Act and Section 498-A I.P.C are neither defective nor infirm shall be applicable in respect of the charge for the offence under Section 304-B I.P.C also. Hence there is no scope for interference with the judgment of the court below regarding the offene under Section 304-B I.P.C.
20. So far we had been discussing with the tenability of the attack made by the petitioner on the judgment of acquittal of the trial court on the ground that the finding of the court below should be held perverse, as the rejection of evidence of P.W.1 and 2 was improper. Now, let us turn to the second limb of the argument advanced by the learned counsel for the petitioner. According to the submissions made by the learned counsel for the petitioner, the investigating officer failed in his duty to produce a letter sent by the petitioner/P.W.1 to the Deputy Superintendent of Police and the letters of the deceased addressed to P.W.1 produced by P.W.1 during investigation to the Inspector of police, Karumathampatti Police station and thereby indirectly helped the first respondent herein/accused to escape from the charges made against him. The petitioner has now produced a copy of an undated petition (letter) alleged to have been submitted to the Deputy Superintendent of Police (P.W.8) and Xerox copies of the letters allegedly written by the deceased to the petitioner (P.W.1) in a typed set of papers. He has also included a Xerox copy of the acknowledgement allegedly issued by the Inspector of Police, Karumathampatti police station on 23.08.2002 to the effect that ten letters written by the deceased were handed over by Ellappan, the brother of the deceased.
21. Admittedly, the inspector of police, Karumatthampatti was not the Investigating Officer. The investigation was done by P.W.8-Deputy Superintendent of Police right from the beginning. Under such circumstances, the copy of the acknowledgement now sought to be introduced as an additional evidence is alleged to be given by the inspector of police, Karumatthampatti police station. There is no evidence to show that the said document was placed before the Deputy Superintendent of Police, the Investigating Officer or placed in the case diary file so that the Investigating Officer could have got an occasion to go through the same. Even though a copy of the petition allegedly sent to the Deputy Superintendent of Police, (P.W.8 - Investigating Officer) has been included in the typed set, the same does not contain any date. The said copy of the petition contains a recital to the effect that copies of 10 letters of the deceased had been annexed to the said petition. P.W.8, the investigating officer has not spoken about the receipt of any such petition/complaint or the copies of the letters. At no place in their evidence, P.W.1 and 2 referred to any such petition (complaint) having been given to the Deputy Superintendent of Police by P.W.1. They have not even stated in their evidence that they submitted the copies of the letters along with such petition to the Deputy Superintendent of Police. They have also failed to state in their evidence that they handed over the letters of the deceased to the inspector of police, Karumatthampatti police station under acknowledgement dated 23.08.2002.
22. It is quite obvious that the investigation was completed and the charge sheet was signed by the Deputy Superintendent of Police on 17.06.2002 and the same was submitted before the committal magistrate on 08.07.2002. In the charge sheet Ellappan had been shown to be a witness to corroborate P.W.1 regarding the occurrence. There is nothing in the charge sheet to indicate either he had produced such letters of the deceased or that he was cited as a witness in proof of such production of the above said letters. It seems the said charge sheet was returned, as seizure mahazar was not filed along with the charge sheet and the same was re-presented along with a copy of the Mahazar and Form '95'. It does not contain any reference to the recovery of the letters of the deceased. If at all those letters were produced by the brother of the deceased, the same should have been received and submitted to the court under Form '95'. Instead of issuing an acknowledgement, a Mahazar should have been prepared for the recovery of those letters. In addition to that the acknowledgement was said to be issued by the Inspector of Police who was not the Investigating Officer. In such circumstances, it is contended on behalf of the first respondent/accused that have failed in their attempt to secure a conviction of the first first respondent/accused, the petitioner (P.W.1) with the active connivance of the Inspector of Police has made an attempt to introduce an antedated document as acknowledgement and that the same is nothing but an after thought to fill up the lacuna found in the prosecution case. This court is able to find force and substance in the above said contention of the learned counsel fro the first respondent/accused.
23. Further more, unless clear miscarriage of justice is established, this court exercising revisional power cannot allow such evidence to be introduced against the accused. This court is also of the view that the petitioner has miserably failed to establish that there was any attempt on the part of the Investigating Officer or the Prosecuting Agency to screen the offender so that it may be inferred that same has resulted in miscarriage of justice. Therefore, the second limb of argument advanced by the learned counsel for the petitioner should also be discountenanced.
24. The judgment of the Hon'ble Supreme Court in Zahira Habibulla H.Sheikh and Another Vs. State of Gujarat and others reported in 2004 Supreme Court Cases (Cri) 999, popularly known as the 'Best Bakery Case' has been cited by the learned counsel for the petitioner. In the said case as against the judgment of acquittal pronounced by the trial court, an appeal was preferred before the Gujarat High Court in which the judgment of the trial court was confirmed. Thereafter a further appeal was preferred to Supreme Court. The appellant in one of the appeals, by name Zahira Habibulla, who claimed to be an eye witness to the macabre killings allegedly made as a result of communal fronts had made statements and filed affidavits after the completion of trial and judgment of the trial court to the effect that during trial she was forced to depose falsely and turned hostile on account of threats and coercion. There were also allegations to the effect that there was improper conduct of the trial by the Public Prosecutor and that the role of investigating agency itself was perfunctory and not impartial. Hon'ble Supreme Court while dealing with the said case, expressed a view that the affidavit of Zahira raised an important issue regarding witness protection, besides the quality and credibility of the evidence before court. The Hon'ble Supreme Court also observed that there was unanimity in the stand of the parties regarding the role of the Investigating Agency, that it was tainted, biased and not fair. Under such circumstances, the Hon'ble Supreme Court, dealing with the criminal appeal, chose to make an observation that it was a case of "fences swallowing their crops and justice blindfolded would imply that the judges should be blind only to the identity of the parties and not to the truth of the cause in disregard of their duty to prevent miscarriage of justice". The said view of the Supreme Court was made in an appeal whereas the present case is a revision against acquittal. Moreover, in the said case before the Supreme Court, the witness who had filed the appeal had sworn an affidavit to the effect that she was threatened and coerced to depose falsely and to turn hostile. On the other hand, in the instant case there is no such serious allegation that any of the witnesses for the prosecution was subjected to threat or coercion to depose falsely, to turn hostile or not to depose the truth. In fact the present petitioner in the criminal revision case and his wife were examined as P.W.1 and 2. There is no averment that they were in any way prevented from deposing what they knew about the case. Furthermore, it has been pointed out supra that on facts the petitioner has failed to establish a case that letters of the deceased were recovered by the Investigating Agency. For all the reasons stated above, this court is of the considered view that the observations made by the Hon'ble Supreme court in Best Bakery case are not applicable to the case on hand.
25. For all the reasons stated above, this court comes to the conclusion that there is no illegality, infirmity or defect in the judgment of the court below capable of being interfered with in exercise of this court's revisional power; that the petitioner has failed to succeed in his attempt to show that there had been a miscarriage of justice and that there is no merit in the Criminal Revision Case and the same deserves to be dismissed. Accordingly, criminal revision case is dismissed.
asr