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2013 DIGILAW 5 (CHH)

LALIT KUMAR NAYAK v. STATE OF C. G.

2013-01-02

R.N.CHANDRAKAR, T.P.SHARMA

body2013
ORDER T.P. Sharma, J. :- 1. Criminal Revision No. 119 of 2005 and M.Cr.C. No. 2051 of 2005 filed against the judgment of acquittal dated 31-1-2005 passed by 2nd Additional Sessions Judge, Mahasamund in S.T. No. 321 of 2003 are being disposed of by this common order. 2. By filing criminal revision under Section 397/401 of the Cr.P.C., the applicant has challenged the legality and propriety of the judgment of acquittal of respondents No. 2, 4 and deceased respondent No. 3 and by filing M.Cr.C. No. 2051 of 2005, petitioner/ Investigating Officer of the case has prayed for expungement of the remarks passed by the trial Court in para 38 of the judgment impugned. 3. As per case of the prosecution, deceased Meena Chaudhari wife of respondent No. 2 Girish Kumar Chaudhari died within seven years of her marriage in abnormal circumstances by burn injuries in the house of respondents No. 2 and 4 on 25-2-2003, merg was recorded vide Ex. P/8. After summoning the witnesses vide Ex. P/1, inquest over the dead body of deceased was prepared vide Ex. P/.2, photos of the deceased were taken, dead body of deceased was sent for autopsy to community health centre, Saraipali, vide Ex. P.3 where PW/6 Dr. N.S. Sahu, conducted autopsy vide Ex. P/6 and found bum injuries over the body of deceased and opined that death was as a result of burn injuries. Finally first information report was recorded vide Ex. P/14. 4. Statements of witnesses were recorded under Section 161 of the Code of Criminal Procedure (for Short, "the Code"). After completion of investigation, charge sheet was filed against the respondents No. 2, 4 and deceased respondent No. 3 in the Court of Judicial Magistrate First Class, Saraipali for the offence punishable under Sections 304-B and 34 of the IPC. After hearing the parties, the trial Court has framed charges of the offence punishable under Section 304-B of the Code. After completion of investigation, charge sheet was filed against the respondents No. 2, 4 and deceased respondent No. 3 in the Court of Judicial Magistrate First Class, Saraipali for the offence punishable under Sections 304-B and 34 of the IPC. After hearing the parties, the trial Court has framed charges of the offence punishable under Section 304-B of the Code. After trial, the court below has acquitted the respondents No. 2, 4 and deceased respondent No. 3 and while acquitting the respondents the trial court has passed the following stricture against the Investigating Officer Goverdhan Singh Thakur in para 38 of the impugned judgment which reads as under : ^^ekeys ds vra es ;g dguk vuqfpr ugh gksxk fd iqfyl dks ;g ugh Hkwyuk pkfg, fd vUos”kd vfHkdj.k dk ;g drZO; gS fd og U;k;ky; ds le{k lR; dFku yk;s] fdUrq bl ekeys es vUos”k.k vf/kdkjh xkso/kZu flag Bkdqj] iqfyl mi v/kh{kd }kjk ,slk fd;k tkuk ugh ik;k x;kA ekeys dh exZ foospuk mUgh ds }kjk dh x;h vkSj mudh tk¡p fjiksVZ ds vk/kkj ij gh vfHk;qDrx.k ds fo:) /kkjk 304 ¼ch½ dk vijk/k Fkkuk ljk;ikyh es iathc) fd;k x;k] fdUrq vk’p;Z dk fo”k; gS fd muds }kjk exZ tk¡p ds nkSjku fy;s x;s xokgks ds dFku u rks izdj.k es is’k fd;s x;s vkSj u gh dsl Mk;jh es layXu fd;s x;sA bl rF; dk [kqyklk djus ds fy, mUgs U;k;ky; ryc djus dk vusdks iz;kl fd;k x;k fdUrq og vuqifLFkr jgsA bl izdkj] muds }kjk ekeys ds lgh rF;ks dks U;k;ky; ds le{k fNik;k x;ka^^ 5. We have heard learned counsel for the parties and perused the judgment impugned. 6. Shri M.K. Bhaduri, learned counsel for the applicant in Criminal revision vehemently argues that the evidence adduced on behalf of the prosecution was sufficient for drawing inference that respondents No. 2, 4 and deceased respondent No. 3 have committed dowry death. The evidence of relatives of the deceased PW/8 Lalit Kumar, PW/9 Champa Bai, mother of deceased and PW/10 Seth Kumar are sufficient for drawing inference that deceased Meena Choudhari has been subjected to torture and cruelty in connection with demand of dowry by respondents No. 2, 4 and deceased respondent No. 3 soon before her death and she died within seven years of her marriage in the house of respondents No. 2, 4 and deceased respondent No. 3 in abnormal circumstances as a result of burn injuries. The court below ought to have convicted the respondents No. 2 and 4 and deceased respondent No. 3 under Section 304-B of the IPC. He further submits that the Investigating Officer has not investigated the offence properly, therefore, the trial Court has rightly passed the remarks against him. 7. On the other hand, Shri Vinod Tekam, learned Panel Lawyer for the State submits that the court below has rightly passed the judgment. 8. Mr. Awadh Tripathi, learned counsel for the respondents No. 2 and 4 in Criminal Revision No. 119 of 2005 and petitioner in M.Cr.C. No. 2051 of 2005 submits that after appreciating the evidence available on record, considering the evidence of the relative witnesses and their unnatural conduct, the court below has disbelieved their evidence and has rightly acquitted the respondents No. 2, 4 and deceased respondent No. 3 of the charges in which State has not chosen to file appeal. In case of revision at the instance of private party against the judgment of acquittal, normally findings are not required to be disturbed unless glaring mistake has been committed by the trial Court. He further submits that without providing an opportunity to explain, the court below has passed the adverse remarks which are not sustainable under the law. He has placed reliance in the matter of K.P. Singh Kushwaha Vs. State of M.P. 2005(2) MPHT 423 in which High Court of MP has held that without providing opportunity of explanation, passing of adverse remarks is not legal. 9. We have examined the evidence adduced on behalf of the prosecution and defence taken by the respondents No. 2 and 4. Undisputedly, deceased Meena Chaudhary wife of respondent No. 2 Girish Kumar Chaudhary died within seven years of her marriage in the house of respondents No. 2 and 4 in abnormal circumstances as a result of burn injuries. 10. This is criminal revision at the instance of private party. The State having right to appeal against the judgment of acquittal has not chosen to file appeal against the judgment of acquittal. Although the revisional Court is competent to set aside the judgment of acquittal, revisional jurisdiction is required to be invoked on a private complainant against the order of acquittal only exceptional cases where revisional courts find manifest illegality or irregularity or gross miscarriage of justice. Although the revisional Court is competent to set aside the judgment of acquittal, revisional jurisdiction is required to be invoked on a private complainant against the order of acquittal only exceptional cases where revisional courts find manifest illegality or irregularity or gross miscarriage of justice. While dealing with question of interference in revision against judgment of acquittal, in the matter of K. Chinnaswamy Reddy Vs. State of A.P. AIR 1962 SC 1788 the Supreme Court has held that jurisdiction should be exercised by the High Court only in exceptional cases. In the matter of Bindeshwari Prasad Singh Vs. State of Bihar AIR 2002 SC 2907 the Supreme Court has held that in revision against acquittal at the instance of a private party, normally the Court would not re-appreciate evidence. 11. In order to attract the provisions of Section 304-B of the IPC, prosecution is required to prove the following essential ingredients of the offence; (i) the deceased wife or bride died within seven years of her marriage; (ii) death was abnormal as a result of burn injuries or by other injuries; and (iii) soon before her death she was subjected to cruelty in connection with demand of dowry by her husband and relatives of the husband. 12. In the present case, the first two ingredients of the offence are undisputed. As regards third ingredient is concerned, PW 18 Lalit Kumar, father of deceased Meena Chaudhary, PW/9 Champa Bai, mother of deceased and PW/10 Seth Kumar, uncle of the deceased Meena Chaudhary have deposed in their evidence that they have given dowry to the respondents at the time of marriage of Meena, but just after one year of her marriage, respondents started committing torture and cruelty and were interested in taking share in the land of PW/8 Lalit Kumar, father of the deceased. They were demanding Rs. 50,000/- for starting poultry farm business 15 days prior to the incident deceased Meena Chaudhary informed PW/8 Lalit Kuar relating to torture and cruel activities of respondents No. 2 and 4. Defence has cross-examined these witnesses at length. There are contradictions and omissions in their statements. They have not stated the aforesaid facts at the time of inquest or merg enquiry, even when they reached to the house of respondents No. 2 and 4 after knowing the incident they have also not stated these facts to any person or Police. 13. Defence has cross-examined these witnesses at length. There are contradictions and omissions in their statements. They have not stated the aforesaid facts at the time of inquest or merg enquiry, even when they reached to the house of respondents No. 2 and 4 after knowing the incident they have also not stated these facts to any person or Police. 13. As per evidence of PW/2 Babulal whose father-in-law is next door neighbour of respondents No. 2 and 4, on 24-2-2003 deceased Meena Chaudhary was shouting and told him that members of her in-laws' house were demanding money, they were abusing and assaulting her. She also requested him to inform her parents and he had informed to Babulal who was residing at village Kutela, relative of the deceased. On second day i.e., 25-2-2003 he heard that Meena Chaudhary died as a result of bum injuries. Defence has also cross-examined this witness at length but has not been able to elicit anything in his cross-examination to discredit the aforesaid part of the evidence. While appreciating the evidence and evaluating the evidence of these witnesses, the trial Court has disbelieved the evidence of these witnesses on the ground that they are relative and interested witnesses and they have not stated the aforesaid facts, when they reached to the house of respondents No. 2 and 4 after knowing the incident they have also not narrated these facts at the time of inquest or prior to the incident. 14. Undisputedly, deceased Meena Chaudhary wife of respondent Girish Kumar Chaudhary died as a result of bum injuries in the house of respondent Girish Kumar Chaudhary. She was not insane, otherwise, there was no cause for such death. Even in case of suicide, there was no cause for committing such suicide leaving her small child. Evidence of PW/8 Lalit Kumar, father of deceased, PW/9 Champabai mother of deceased and PW/10 Sethkumar, uncle of deceased reveals that there was regular quarrel between respondents No. 2 and 4 and deceased Meena Chaudhary, especially relating to demand of Rs. 50,000/- for starting poultry farm business. Although demand of money for starting business cannot be considered as demand of dowry, but on the ground of such demand, ill-treatment can be considered as torture and cruelty upon the wife or bride for dragging her to end her life. 50,000/- for starting poultry farm business. Although demand of money for starting business cannot be considered as demand of dowry, but on the ground of such demand, ill-treatment can be considered as torture and cruelty upon the wife or bride for dragging her to end her life. They have not disclosed the aforesaid facts of demand of dowry and torture prior to the incident. Even the witnesses to the inquest have not stated anything to this effect. 15. In case of matrimonial offence the evidence of relative witnesses who have not complained the matter prior to commission of offence at the time of inquest or member of their community, cannot be disbelieved. The matrimonial relations are delicate ties based on faith, entrustment hope and in case of such relation, relatives normally do not react and report the matter to Police or the members of the community immediately. 16. Undisputedly, at the time of inquest, these witnesses were in the state of shock, therefore, it would not be possible to presume that the aforesaid things/facts would be disclosed by them to Police at the time of inquest even it is not the requirement of inquest. The evidence of relatives cannot be rejected only on the ground that they are relatives and previously the matter has not been reported or intimated or at the time of inquest or when they reached first time to the house of respondents No. 2 and 4. 17. PW/2 Babulal, PW/8 Lalit Kumar, PW/9 Champa Bai and PW/10 Seth Kumar, are also relative witnesses. The trial court has disbelieved their evidence on the ground that they have not stated the factum of demand of dowry, torture and cruelty prior to the incident to any person, at the time when they reached the house of respondents No. 2 to 4 and at the time of inquest. Evidence of relative or interested witnesses cannot be rejected in toto on the ground of their relation. Relatives are the last persons to spare real culprit and implicate an innocent falsely. 18. While dealing with the question of relative and interested witnesses, the Supreme Court in the matter of Ramanand Yadav Vs. Evidence of relative or interested witnesses cannot be rejected in toto on the ground of their relation. Relatives are the last persons to spare real culprit and implicate an innocent falsely. 18. While dealing with the question of relative and interested witnesses, the Supreme Court in the matter of Ramanand Yadav Vs. Prabhu Nath Jha and others AIR 2004 SC 1053 has observed in para 15 which reads as under: “But at the same time if the relatives or interested witnesses are examined, the Court has a duty to analyze the evidence with deeper scrutiny and then come to a conclusion as to whether it has a ring of truth or there is reason for holding that the evidence was biased. Whenever a plea is taken that the witness is partisan or had any hostility towards the accused foundation for the same has to be laid. If the materials show that there is partisan approach, as indicated above the Court has to analyze the evidence with care and caution.” 19. While dealing with the same question in the light of relationship, the Supreme Court in the matter of Mst. Dalbir Kaur and others Vs. State of Punjab AIR 1977 SC 472 has held in para 13 which reads as under: "A close relative, who is a very natural witness in the circumstances of a case, cannot be regarded as an 'interested witness'. The term 'interested' postulates that the person concerned must have some direct interest in seeing that the accused person is somehow or the other convicted either because had some animus with the accused or for some other reason". 20. The term 'interested' postulates that the person concerned must have some direct interest in seeing that the accused person is somehow or the other convicted either because had some animus with the accused or for some other reason". 20. As regards adverse remarks passed by the trial court against the Investigating Officer is concerned, while dealing with the question of passing of remarks, in case of K.P. Singh Kushwaha (supra), High Court of MP has observed in para 14 that the criminal courts have full power and authority to pass disparaging remarks but they are required to observe the guidelines issued by the Supreme Court in the case of The State of Uttar Pradesh vs. Mohammad Nairn AIR 1964 SC 703 in which while dealing with the question of disparaging and adverse remarks, the Supreme Court has observed in para 10 as follows: "The last question is, is the present case a case of an exceptional nature in which the learned Judge should have exercised his inherent jurisdiction under Section 561-A CrPC in respect of the observations complained of by the State Government? If there is one principle of cardinal importance in the administration of justice, it is this the proper freedom and independence of Judges and Magistrates must be maintained and they must be allowed to perform their functions freely and fearlessly and without undue interference by any body, even by this Court. At the same time it is equally necessary that in expressing their opinions Judges and Magistrates must be guided by considerations of justice, fair-play and restraint. It is not infrequent that sweeping generalisations defeat the very purpose for which they are made. It has been judicially recognised that in the matter of making disparaging remarks against persons or authorities whose conduct comes into consideration before courts of law in cases to be decided by them, it is relevant to consider (a) whether the party whose conduct is in question is before the court or has an opportunity of explaining or defending himself; (b) whether there is evidence on record bearing on that conduct, justifying the remarks; and (c) whether it is necessary for the decision of the case, as an integral part thereof, to animadvert on that conduct. It has also been recognized that judicial pronouncements must be judicial in nature, and should not normally depart from sobriety, moderation and reserve". 21. It has also been recognized that judicial pronouncements must be judicial in nature, and should not normally depart from sobriety, moderation and reserve". 21. The courts are competent to pass disparaging and adverse remarks but before passing such remarks, opportunity of explaining or defending is necessary to the person before passing such remarks. 22. In the present case, the trial court has not provided an opportunity of explanation to the petitioner Goverdhan Singh Thakur in M.Cr.C. No. 2051/2005. In absence of such opportunity of explanation, the adverse and disparaging remarks against petitioner Goverdhar Singh Thakur are not sustainable under the law and same are required to be expunged. 23. In case of matrimonial offence like dowry death, the courts are required to be cautious and required to pay more attention in trial of the cases, appreciation and marshalling of evidence, especially in the light of circumstances which normally do not permit the parents of the bride or the bride to react and to respond, to report the matter to the Police or the other authorities or to members of the community, unless they are compelled to do so or circumstances become beyond their tolerance. 24. While appreciating the evidence of the aforesaid relative witnesses and PW 12 Babulal, the trial Court has not appreciated the evidence in the light of the aforesaid legal parameter and circumstances and thereby committed manifest illegality resulting into miscarriage of justice. 25. For the foregoing reason, the judgment of acquittal based on irrelevant consideration requires interference in exercise of revisional jurisdiction. 26. Consequently, revision against judgment of acquittal dated 31-1-20051 is allowed and judgment of acquittal dated 31-1-2005 is hereby set aside. 27. M.Cr.C. No. 2051/2005 is also allowed and the adverse remarks passed by the trial Court against the petitioner Goverdhan Singh Thakur in para 38 of the judgment (quoted in para 4 of this judgment), are hereby expunged. 28. The case is remitted back to the trial court for providing an opportunity of hearing to the parties including alteration or addition of the charges so framed, to adduce evidence, examine the accused under Section 313 of the Code and pass the judgment afresh. 29. Parties shall appear before the trial Court or successor of the court on 26-2-2013. Revision & Petition Allowed.