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2006 DIGILAW 1941 (PNJ)

Devi Dass v. State Of Punjab

2006-05-05

AJAI LAMBA

body2006
Judgment Ajai Lamba, J. 1. The present revision petition has been filed by Devi Dass son of Bhagwan Dass and is directed against the judgment passed by Sessions Judge, Hoshiarpur, dated 21.12.1998 whereby accused Karam Chand, Sital Kaur, Gurdev Ram and Balbir Kaur have been acquitted. Devi Dass is father of deceased-Raj Kumar, whereas accused Karam Chand is father-in-law, Sital Kaur is mother-in- law, Gurdev Ram is co-brother and Balbir Kaur is wife, of deceased-Raj Kumar, respectively. 2. The facts of the case are that on 22.7.1996, Devi Dass made a statement to ASI Raj Kumar to the effect that his elder son Raj Kumar, who was working as a Mate in the Municipal Committee, was married about two years back with Balbir Kaur. On the said day, while the complainant-petitioner was present at his house, Munish Kumar son of Om Parkash came and told him that Raj Kumar had been admitted to Civil Hospital, Hoshiarpur whereupon, Devi Dass along with his wife-Gurdip Kaur went to the Civil Hospital at about 10.45 a.m. Raj Kumar was lying in the Emergency Ward and the doctors were giving treatment. Raj Kumar is stated to be in semi-conscious condition at that time. It has been stated by Devi Dass (complainant) that some time thereafter, when Raj Kumar, his son, regained consciousness, he informed him that he had gone to his in- laws house on 19.7.1996 and last night (night of 21/22.7.1996), he was asked by the accused to take liquor and to eat meat but he refused. They again insisted him to do so and also used abusive language, they also gave him beatings but he neither took liquor nor at meat. In the morning, when Raj Kumar was about to leave, he asked his wife to give her urine sample for testing because due to arbortion five months ago, there was puss formation in the womb. Balbir Kaur, accused, refused to give the urine sample and all the accused abused Raj Kumar and threatened to kill him in case he dared to come to their house again. It is stated by Devi Dass that Raj Kumar came from the house of the accused (his in-laws) to attend to his duty in the Municipal Committee. Balbir Kaur, accused, refused to give the urine sample and all the accused abused Raj Kumar and threatened to kill him in case he dared to come to their house again. It is stated by Devi Dass that Raj Kumar came from the house of the accused (his in-laws) to attend to his duty in the Municipal Committee. On account of harassment at the hands of his in-laws, Raj Kumar, his son, had taken some poisonous substance and when his condition was serious, his colleagues got him admitted in the Civil Hospital, where he died at 7.15 p.m. on 22.7.1996. The complainant-petitioner has further stated that during the period Balbir Kaur remained at Village Barian Kalan, her parents- Karam Chand and Sital Kaur, had threatened them 9/10 times in the presence of the Panchayat. 3. On the basis of the afore-narrated statement of Devi Dass, petitioner, FIR bearing No. 140 dated 22.7.1996 was lodged in Police Station, City Hoshiarpur, under Section 306/34, IPC. Challan was presented in the Court of Illaqa Magistrate against the accused-respondents and charges were framed under Section 306 read with Section 34, IPC, against the accused to which they pleaded not guilty and claimed trial. 4. The prosecution, in order to prove the charge, examined as many as 10 witnesses. Of the 10 witnesses, Avtar Singh, PW-8, was declared hostile and was cross-examined by the Public Prosecutor. The Investigation witnesses are SI Jagtar Singh and ASI Raj Kumar, PW-9 and PW-10, respectively. 5. Exh. DA has been brought on record along with endorsement of the doctor, Exh. DA/1, wherein on 22.7.1996 at 11.00 a.m., Raj Kumar has been shown as unfit to make the statement by the doctor. Exh. DB is the Bed Head Ticket of Raj Kumar indicating that he was admitted at 9.00 a.m. and at the time of admission was drowsy, cold sweating and the pulse and Blood Pressure were unrecordable. The respiration rate was 20 per minute. It has again been recorded at 11.30 a.m. by the doctor that the Blood Pressure and Pulse were unrecordable. At 1.00 p.m., the Blood Pressure is stated to be 70/? and pulse 120 and feeble. At 2.10 p.m. the report indicates that the general condition of the patient was very grave. At 3.30 p.m., the general condition continued to be grave and delirious. At 1.00 p.m., the Blood Pressure is stated to be 70/? and pulse 120 and feeble. At 2.10 p.m. the report indicates that the general condition of the patient was very grave. At 3.30 p.m., the general condition continued to be grave and delirious. Likewise, at 4.30 p.m. and 6.20 p.m., the general condition is indicated to be grave. As per record, the patient had cardio- respiratory arrest at 7.00 p.m. and external cardiac message (message ?) etc. were given. He was declared dead at 7.15 p.m. 6. The trial Court, having referred to the entire evidence and having discussed all the arguments, has recorded that the prosecution had failed to make out any case against the accused and that the evidence was not sufficient to hold that the accused had instigated or abetted the commission of suicide by Raj Kumar, deceased and, thus, acquitted the accused-respondents. 7. Not satisfied with the findings of the trial Court, the present criminal revision has been filed. 8. I have gone through the grounds of revision, have heard the learned counsel for the parties and have gone through the record very carefully. 9. The scope of revisional jurisdiction of this Court is governed by Section 401 of the Code of Criminal Procedure (hereinafter referred to as `the Code). The learned counsel appearing for the petitioner has placed reliance on two judgments of the Honble Supreme Court, namely, Satyajit Banerjee v. State of West Bengal, 2005(1) RCR(Criminal) 723 and Ram Briksh Singh and others v. Ambika Yadav and another, 2004(2) RCR(Criminal) 182, respectively. In these judgments, the scope of Section 401 of the Code has been explained. In Satyajit Banerjees case (supra), reliance had been placed on the judgment in Zahira Habibulla Sheikh v. State of Gujarat, 2004(3) RCR(Criminal) 347. The Supreme Court while considering the issue had held that that was an extra- ordinary case in which the Court was convinced that the entire prosecution machinery was trying to sheild the accused i.e. the rioters. It was also found that the entire trial was a farce. The witnesses were terrified and intimidated to keep them away from the Court. It is in the aforesaid extra- ordinary circumstances that the Court not only directed a de novo trial of the case but also made further directions for appointment of the new prosecutor with due consultation of the victims. The witnesses were terrified and intimidated to keep them away from the Court. It is in the aforesaid extra- ordinary circumstances that the Court not only directed a de novo trial of the case but also made further directions for appointment of the new prosecutor with due consultation of the victims. Retrial was directed to be held out of the State of Gujarat. Considering these extra-ordinary circumstances, it has been held that the law laid down in Zahira Habibulla Sheikhs case (supra) cannot be applied to all cases against the established principles of criminal jurisprudence. Direction for retrial should not be made in all or every case where acquittal of accused is for want of adequate or reliable evidence. The facts before the Honble Supreme Court were that in the course of hearing of that case, retrial as directed by the High Court had already commenced and the trial Court had recorded the statement of father of the deceased and only remaining part of the evidence was to be recorded. In the exercise of discretionary jurisdiction under Article 136 of the Constitution of India, and keeping in view the stage of retrial, the Honble Supreme Court had restrained from upsetting the whole judgment of the High Court and only certain observations in the impugned judgment of the High Court were considered for adjudication. Having so considered, the Honble Supreme Court held that even if a retrial is directed, in exercise of revisional powers by the High Court, the evidence recorded at the initial trial cannot be erased or wiped out from the record of the case. The trial Court has to decide the case on the basis of the evidence already on record and the additional evidence which would be recorded on retrial. With the said clarification, the Honble Supreme Court had not interfered in the impugned judgment of the High Court in that case. However, while considering the scope of the High Court while exercising jurisdiction under Section 401 of the Code, the Honble Supreme Court has approved of the settled legal position that revisional jurisdiction, at the instance of the complainant, has to be exercised by the High Court only in very exceptional cases where the High Court finds defect of procedure or manifest error of law resulting in flagrant miscarriage of justice. In this regard, the Honble Supreme Court relied on the judgment in K. Chinnaswamy Reddy v. State of Andhra Pradesh, 1963(3) SCR 412, while reproducing the following portion of the judgment of 1963 case :- "That it was open to a High Court in revision and at the instance of a private party to set aside an order of acquittal though the State might not have appealed. But such jurisdiction should be exercised only in exceptional cases, as where a glaring defect in the procedure or a manifest error of law leading to a flagrant miscarriage of justice has taken place. When Section 439(4) of the Code forbids the High Court from converting a finding of acquittal into one of conviction, it is not proper that the High Court should do the same indirectly by ordering a retrial. It was not possible to lay down the criteria by which to judge such exceptional cases. It was, however, clear that the High Court would be justified in interfering in cases such as (1) where the trial Court had wrongly shut out evidence sought to be adduced by the prosecution (2) where the appeal Court had wrongly held evidence admitted by the trial Court to be inadmissible (3) where material evidence has been overlooked either by the trial court or the Court of appeal or (4) where the acquittal was based on compounding of the offence not permitted by law and cases similar to the above." 10. In Ram Briksh Singhs case (supra), while considering the scope of the High Court under Section 401 of the Code, it has been held by the Honble Supreme Court that the powers are required to be exercised sparingly. Though the jurisdiction under Section 401 cannot be invoked to only correct wrong appreciation of evidence and the High Court is not required to act as a Court of appeal but at the same time, it is the duty of the Court to correct manifest illegality resulting in gross miscarriage of justice. Though the jurisdiction under Section 401 cannot be invoked to only correct wrong appreciation of evidence and the High Court is not required to act as a Court of appeal but at the same time, it is the duty of the Court to correct manifest illegality resulting in gross miscarriage of justice. While placing reliance on the judgment in Bindeshwari Prasad Singh alias B.P. Singh and others v. State of Bihar and another, 2002(4) RCR(Criminal) 61 (SC), it has been observed by the Honble Supreme Court that the High Court is not justified in re-appreciating the evidence on record and coming to a different conclusion in a revision preferred by the informant under Section 401 of the Code since it was well settled that the order of acquittal, cannot be interfered with in revision merely on the ground of errors in appreciation of evidence. On facts, in Bindeshwari Prasad Singhs case (supra), it has been found by the Honble Supreme Court that the material evidence had been overlooked leading to manifest illegality resulting in gross miscarriage of justice. It was found to be a case wherein the evidence had been overlooked in relation to the circumstances narrated in the judgment which warranted remand of the case to the trial Court for retrial. The evidence on the record before the trial Court in that case could not have been dealt with in such a manner as had been dealt with by the trial Court. It is in view of these circumstances that the impugned judgment of the High Court was upheld vide which the case had been remanded to the trial Court. 11. In the case in hand, however, the arguments raised by the learned counsel for the petitioner are only to the effect that a different view ought to be taken as against the view taken by the trial Court. Learned counsel for the petitioner has not indicated any part of evidence that has been overlooked by the trial Court while recording a finding of acquittal. Further, no legal infirmity in the procedure or conduct of trial has been shown and, therefore, there is no justification for his Court to interfere in the exercise of the revisional jurisdiction at the instance of the complainant. 12. Further, no legal infirmity in the procedure or conduct of trial has been shown and, therefore, there is no justification for his Court to interfere in the exercise of the revisional jurisdiction at the instance of the complainant. 12. The case law relied upon by the learned counsel for the petitioner i.e. Satyajit Banerjees case (supra) and Ram Briksh Singhs case (supra) has no application to the facts of the present case. To ask the revisional Court to reappreciate the facts that on 19.7.1996, Raj Kumar had gone to his in-laws house and also to reappreciate the medical record referred to above, to show that deceased-Raj Kumar had given oral dying declaration, to my mind, would not fall within the jurisdiction of this Court, under Section 401 of the Code. A perusal of the judgment of the trial Court coupled with the record of the case, i.e. evidence and the exhibits, shows that the entire evidence has been dealt with by the trial Court and an opinion has been formed on appreciation of evidence. The High Court cannot interfere with the judgment of acquittal under Section 401 of the Code simply because it may form a different opinion than the one formulated by the trial Court unless it is held that the finding are perverse or without jurisdiction. I do not find that the findings of the trial Court are, in any manner, perverse or without jurisdiction. 13. The learned counsel for the accused has referred to a judgment of this Court in Gobind Ram v. Murari Lal, 2003(1) RCR(Criminal) 602, in which reliance has been placed on the judgment of the Honble Supreme Court in Bindeshwari Prasad Singhs case (supra). Following the ratio of the law laid down by the Honble Supreme Court in Bindeshwari Prasad Singhs case (supra), as followed by this Court in Gobind Rams case (supra), I am of the considered opinion that the acquittal of the accused-respondents is well justified. 14. Resultantly, I do not find any merit in the revision petition, which is hereby dismissed.