Balram Prasad Agrawal v. State Of Bihar — 1995 DIGILAW 403 (PAT)

Judgment S.K.Chattopadhyaya, J. 1. This revision application at the instance of the informant-petitioner, is directed against the judgment of acquittal dated 12.12.1991 passed by the learned Additional Judicial Commissioner, Lohardagga. 2. Before appreciating the points canvass by the learned Counsel for the parties, it is necessary to portray the background of the case. Opposite Party Nos. 2 to 4 were charged under Sec. 302 read with Sec. 34 of the Indian Penal Code for committing murder of the daughter of the informant namely, Kiran Devi. The opposite party No. 2 was charged under Sec. 302 simplicitor. The prosecution case in nutshell is that Kiran was married to the petitioner No. 1 in 1977. As even after 5 to 6 years of her marriage no child was born, opposite party Nos. 3 and 4 used to threat that opposite party No. 2 would be given a second marriage and Kiran would be killed. However, Kiran was examined by the doctor and subsequently gave birth to two sons. She was brought to her inlaws family in the year 1988 where she was residing since then. Kiran was very often assaulted by her inlaws and husband and there was a demand of dowry. However, Kiran could not fulfil their demand of dowry as she could not collect it from her father. On 31.10.1988 at about 10 A.M. the opposite party No. 1 informed the petitioner that his daughter died after falling into the well. The informant went to the house of her inlaws where he found the dead-body of his daughter was lying near a well. He came back and on 16.1.1989 when he went to the house of his son-in-law to see the second son of his daughter then the neighbourers informed him that on the night preceding the morning of occurrence all the opposite parties had badly assaulted Kiran and were threatened to kill. On getting this information the petitioner suspected some foul-play and felt that his daughter did not meet with an accidental death but accused persons had pushed her into the well in order to kill her. He filed a written report before the Officer-in-charge, Lohardagga Police Station and a case was registered under Sections 498A, 302 and 120 of the Indian Penal Code, The charge-sheet was submitted and after cognizance, the trial was commenced. He filed a written report before the Officer-in-charge, Lohardagga Police Station and a case was registered under Sections 498A, 302 and 120 of the Indian Penal Code, The charge-sheet was submitted and after cognizance, the trial was commenced. The learned court below, after appropriating the evidence on record, came to finding that there was no legal evidence to prove the guilt against the accused persons and acquitted all of them. 3. Mr. S.N. Gupta, learned Counsel appearing on behalf of the petitioner, submits that keeping in mind the revisional power of the High Court in the case of acquittal, the judgment and order of acquittal cannot be sustained in law. According to him, in view of the specific findings in paragraph 8 of the judgment to the effect that the allegation of assault and demand of dowry, the learned court below should have convicted the accused persons under Sec. 498A of the Penal Code. It is contended that when the allegation of torture and demand of dowry resulting in the suspicious nature of death of Kiran was there the court below ought to have convicted the opposite party Nos. 2 to 4 under Sec. 306 of the Indian Penal Code. 4. Mr. D.N. Sinha, learned Counsel appearing on behalf of the contesting opposite parties, on the other hand, submits that the observation of the court below in paragraph 8 of the judgment is nothing but an opinion rather than a finding which cannot be basis for conviction. He further submits that initially the charge-sheet was submitted under Secs. 498A, 302 and 120 of the Indian Penal Code but charge was framed only under Sec. 302 read with Sec. 34 of the Indian Penal Code which goes to show that while framing of charge the trial court was satisfied from the evidence on record that no case was made out against the accused persons for an offence under Sec. 498A. According to Mr. Sinha, the opinion of the doctor was that the death might be homicide, suicide or accidental and the court below having found that there was no legal evidence to substantiate the charge under Sec. 302 read with Sec. 34 of the Penal Code, the story of homicide has to be disbelieved. According to Mr. Sinha, the opinion of the doctor was that the death might be homicide, suicide or accidental and the court below having found that there was no legal evidence to substantiate the charge under Sec. 302 read with Sec. 34 of the Penal Code, the story of homicide has to be disbelieved. There is no evidence, it is contended, to show that Kiran committed suicide and as such, a case of suicide cannot be held to be a reason for her death. Eliminating these two possibilities, Mr. Sinha continues, the opinion of doctor that the death might be due to accident cannot be ruled out. 5. It is not in dispute that the occurrence took place on 31.10.1988 and on the same day, being informed, the petitioner came to the house of his son-in-law and found the dead body of his daughter lying on the side of the well. It is also not in dispute that the police registered U.D. case and after investigation, submitted a final form. On 12.11.1988 the informant visited his son-in-laws house to see his grandson i.e. son of Kiran. On the same day, he came to know from the neighbourers about the alleged brutal treatment meeted out to his daughter on the previous night of the date of occurrence. He filed a written report to the Officer-in-charge, Lohardagga with no result. On 16.1.1989 at 15.30 hours ultimately he lodged the FIR. However, some explanation has been given in the FIR for delayed FIR lodged by the informant. 6. Before proceeding further, the power of the High Court under Secs. 397 and 401 Cr. P.C. has to be looked into. In the case of K. Chinnaswamy Reddy V/s. State of Andhra Pradesh reported in -- , the Apex Court has held that no doubt it is open to a High Court in revision to set aside an order of acquittal even at the instance of private parties, though the State may not have thought fit to appeal; but this jurisdiction should be exercised by the High Court only in exceptional cases, 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. 7. 7. Sub-section(3) of Sec. 401 of the Code of Criminal Procedure forbids the High Court from converting finding of acquittal into one of conviction and this prohibition makes it all the more incumbent on the High Court to see that it does not convert the finding of the acquittal into one of conversion by indirect method of ordering retrial. The Supreme Court has further held that it is not possible to lay down the criteria for determining such exceptional cases which would court all contingencies. It however, proceeded to give by way of illustrations some of those cases which would justify the High Court in interfering with a finding of acquittal in revision. After enumerating those cases by way of illustrations, it was held that these and other cases of similar nature can properly be held to be cases of exceptional nature, where the High Court can justifiably interfere with an order of acquittal and in such a case it is obvious that is cannot be said that High Court was doing indirectly what it could not do directly in view of the provisions of Sec. 439(4) of the Code. This section corresponds to new Sec. 401(3) of the present Code. 8. The aforesaid decision as well as several decisions have been noticed by a learned Single Judge of this Court in the case of Mahabir Mistry V/s. State of Bihar, reported in 1990 PLJR 555. After considering different aspect of the aforesaid decision, this Court refused to entertain the revision application against an order of acquittal. 9. In the light of these settled principle of law, let me scrutinise the judgment of the court below. It is a fact that in paragraph 8 of the judgment the court below after considering the evidences has observed that the opposite parties used to assault Kiran and were also demanding money from her. He also found that some threat was given to Kiran. Having observed aforesaid facts, the learned court below concluded by observing that as the marriage of Kiran took place in 1977 and the murder took place in the year 1988, so it cannot be presumed that Kiran might have been killed for the sake of dowry. He also found that some threat was given to Kiran. Having observed aforesaid facts, the learned court below concluded by observing that as the marriage of Kiran took place in 1977 and the murder took place in the year 1988, so it cannot be presumed that Kiran might have been killed for the sake of dowry. In my considered opinion, the aforesaid observation of the court below cannot be held to be a finding rather it was only his opinion and the ultimate finding on this question does not call for any interference. 10. In this context one fact has to be borne in mind that the petitioner being the father of Kiran, naturally was aware of the demand of dowry as well as assault by her inlaws.He had seen the deed body of his daughter on 31.10.1988 and without loding any FIR/complaint he returned back. He went to the same place on 12.11.1988 and after hearing from the neighbourers he filed a written complaint before the police. When no action was taken, on 16.1.1989 he filed the FIR. It does not stand the reason as to why when the informant saw the dead body of his daughter on 31.10.1988 and was aware of the alleged mal treatment and demand of dowry by the accused persons, he did not inform the police immediately. In the U.D. case final form was submitted but no protest petition was filed. All the circumstances lead one to think that even there was some ill-treatment in the house of inlaws of Kiran, the informant-petitioner or deceased Kiran did not take it seriously. Though there are some evidence regarding demand of dowry and assault, in may view, the learned court below has taken the right view by not- finding the opposite parties guilty under Sec. 498-A. Similarly, there is no whisper that it was a case of suicide. 11. Mr. Gupta has failed to draw my attention to any of the evidences from where it can be said that deceased Kiran was pushed into he well by any of the accused persons. Moreover, the opinion of doctor that the death might be accidental can not be ruled out. 11. Mr. Gupta has failed to draw my attention to any of the evidences from where it can be said that deceased Kiran was pushed into he well by any of the accused persons. Moreover, the opinion of doctor that the death might be accidental can not be ruled out. The doctor was not definite in his opinion as to whether it was a case of homicide, suicide or accident and in such view of the matter, when the prosecution has failed to establish the charge under Sec. 302 I.P.C. and no case of suicide was made out, only conclusion that can be drawn that unfortunate death of Kiran was accidental. The observation of the court below that he had no doubt in its mind that the accused persons committed the murder, in my opinion, was not called for. When the court was satisfied that there was no cogent evidence to establish the charge under Sec. 302 IPC against the accused persons beyond all reasonable doubts, in my opinion, even if the court below was morally convinced about the murder of Kiran by the accused persons, it has rightly acquitted them from the aforesaid charge. 12. Having giving my considered opinion, in the facts and circumstances of the case, I find no merit in this application and the same is dismissed.