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Monday, August 19, 2013

No case was made out under sec.498 A, 304 B and 302 of I.P.C. = In view of the specific case of the prosecution that the accused had poured kerosene on the deceased and thereafter set her on fire and had gagged her mouth with a piece of cloth to prevent her from screaming, which version has been unfolded by PWs 1, 2, 3 and 4, it is difficult to see as to how the charge against the accused-appellant under Section 304-B of the IPC could be sustained. The evidence of PW-12 Thiru Subramaniyam, Investigating Officer of the case, that the investigation did not reveal any harassment and ill-treatment of the deceased by the accused prior to her death makes the prosecution case against the accused under the aforesaid Section as well as under Section 498A of the IPC wholly unsustainable. Insofar as the offence under Section 302 of the IPC is concerned, there is no eye witness to the occurrence. PWs-1 to PW-4 though examined as eye witnesses cannot be understood to have actually witnessed any of the events that would be crucial for the determination of the liability of the accused-appellant. By the time they had reached the place of occurrence the deceased was already engulfed in flames. The fact that PW-6 had stated that the deceased had come to his clinic unaccompanied by PWs 1, 2, 3 and 4 who in their depositions have claimed otherwise is too significant a contradiction to be ignored. There is a further contradiction in the evidence of PWs 1 and 2 on the one hand and PW-12 on the other. According to PW-1 and PW-2 they had made a complaint to the police station immediately after the occurrence and thereafter went to the hospital whereas PW-12 had deposed that the complaint was lodged after PW-1 and PW-2 had returned from the hospital. The evidence of PW-10 Dr. N.Usha that the deceased herself had stated that she was injured due to bursting of the stove while she was cooking casts a further doubt on the prosecution story. The absence of the proof of seizure of the material objects, made by the Mahazar (Exh. P-10) and the contradiction between the oral testimony and the contents of Exh. P-9 with regard to the actual place of occurrence, in our considered view, further demolishes the credibility of the prosecution version. In the above facts the view taken by the Trial Court in acquitting the accused cannot be held to be a view impossible of being reached. We, therefore, allow this appeal, set aside the order of the High Court dated 27.04.2006 and restore the order of acquittal dated 16.07.2003 passed by the learned Trial Court.

                    PUBLISHED IN     http://judis.nic.in/supremecourt/imgst.aspx?filename=40660     
   REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION
                       CRIMINAL APPEAL NO.462 OF 2008

Venkatesan                              ...  Appellant(s)
                                   Versus
Rani & Anr.                             ...  Respondent(s)



                               J U D G M E N T

RANJAN GOGOI, J.

1.    What are the true contours of the  jurisdiction  vested  in  the  High
Courts under Section 397 read with Section  401  of  the  Code  of  Criminal
Procedure, 1973 (hereinafter for  short  ‘the  Code’)   while  examining  an
order of acquittal passed  by  the  Trial  Court?   Whether  the  principles
governing the exercise of  the  aforesaid  jurisdiction  have  been  rightly
determined by the High Court in the present case and,  therefore,  had  been
correctly applied  to  reverse  the  order  of  acquittal  of  the  accused-
appellant passed by the learned Trial Court and to remit the matter  to  the
said Court for a de novo disposal, is the further question  that  arises  in
the present appeal filed against an order dated  27.04.2006  passed  by  the
High Court of Judicature at Madras.

2.    The appellant is the husband of one  Anusuya  who,  according  to  the
prosecution, was put to death by  the  appellant  on  19.4.2000  by  pouring
kerosene on her and thereafter setting her on fire.   The  marriage  between
the appellant and the deceased took place sometime in the year 1998  on  the
own accord  of  the  parties.   According  to  the  prosecution,  after  the
marriage, the appellant raised demands for  various  dowry  items  including
cash.  As such demands were  only  partially  met  by  the  parents  of  the
deceased the appellant, according  to  the  prosecution,  harassed  and  ill
treated the deceased and eventually caused her death on 19.4.2000.   On  the
basis of the aforesaid  facts  alleged  by  the  prosecution,  the  accused-
appellant was put to trial for commission of offences under  Sections  498A,
304-B and 302 of the Indian Penal Code.  The Trial  Court,  on  the  grounds
and reasons assigned, which will be duly  noticed,  acquitted  the  accused-
appellant.  Aggrieved, the mother of the  deceased  invoked  the  revisional
jurisdiction of the High Court to challenge the acquittal.  By the  impugned
judgment and order dated 27.04.2006 the High Court held that  the  order  of
acquittal passed by the learned Trial Court suffered from  certain  inherent
flaws which justified a reversal of  the  same  and  for  remission  of  the
matter for a fresh decision in accordance with law and  the  directions  set
out in the said order of the High Court.

3.    We have heard Mr. K.K. Mani, learned counsel  for  the  appellant  and
Mr. M. Yogesh Kanna, learned counsel appearing for the State.

4.    Learned counsel for the appellant has submitted that the acquittal  of
the accused-appellant made by the learned Trial Court is  based  on  a  full
and complete consideration of the evidence and materials on record.   It  is
submitted that cogent reasons have been assigned by the learned Trial  Court
in support of the acquittal ordered by it.  It is also  contended  that  the
High Court has erroneously taken the view that  the  order  of  the  learned
Trial Court lacks clarity on the vital aspects of the case  as  outlined  in
the order of the High Court dated 27.04.2006.  All  the  issues  highlighted
by the High Court in its order dated 27.04.2006 have, in  fact,  been  dealt
with by the learned Trial Court.  The reversal of the acquittal by the  High
Court is, therefore, contended to be wholly unjustified.

5.    Opposing the contentions advanced on behalf of the  accused-appellant,
learned counsel for the State has urged that no  acceptable  basis  for  the
impugned acquittal is evident in the  order  of  the  learned  Trial  Court.
Learned counsel has supported the findings recorded by  the  High  Court  by
contending that  there  is  lack  of  clarity  and  absence  of  categorical
findings on vital issues of the case which  makes  it  imperative  that  the
impugned order of  remand  made  by  the  High  Court  by  its  order  dated
27.04.2006 be maintained. No interference with the same would be justified.

6.    To answer the questions that have  arisen  in  the  present  case,  as
noticed  at the  very  outset,  the  extent  and  ambit  of  the  revisional
jurisdiction of the High Court, particularly  in  the  context  of  exercise
thereof in respect of a judgment of acquittal, may be briefly noticed.   The
law in this regard is well settled by a catena of decisions of  this  Court.
Illustratively,  as  also  chronologically,  the   decisions   rendered   in
Pakalapati Narayana Gajapathi Raju vs. Bonapalli Peda Appadu[1], Akalu  Ahir
v. Ramdeo Ram[2], Mahendra Pratap Singh v. Sarju  Singh[3],  K.  Chinnaswamy
Reddy v. State of A.P.[4]  and Logendranath Jha v. Polai Lal  Biswas[5]  may
be  referred  to.   Specifically  and  for  the  purpose   of   a   detailed
illumination on the subject the contents of paras 8 and 10 of  the  judgment
in the case of Akalu Ahir v. Ramdeo Ram (supra) may  be  usefully  extracted
below.
        “8. This Court, however, by  way  of  illustration,  indicated  the
        following categories of cases which would justify the High Court in
        interfering with a finding of acquittal in revision:
              (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.
        These categories were, however,  merely  illustrative  and  it  was
        clarified that other cases of similar nature can also  be  properly
        held  to  be  of  exceptional  nature  where  the  High  Court  can
        justifiably interfere with the order of acquittal.”


        “10. No doubt, the appraisal of evidence by the trial Judge in  the
        case in hand is not perfect or free from flaw and a Court of appeal
        may well have felt justified in disagreeing  with  its  conclusion,
        but from this it does not follow that  on  revision  by  a  private
        complainant, the High Court is entitled to re-appraise the evidence
        for itself as if it is acting as a Court of appeal and then order a
        re-trial. It is unfortunate that  a  serious  offence  inspired  by
        rivalry and jealousy in the matter of election  to  the  office  of
        village Mukhia, should go unpunished. But that can  scarcely  be  a
        valid ground for ignoring or for not strictly following the law  as
        enunciated by this Court.”

      The observations in para 9 in  the  case  of  Vimal  Singh  v.  Khuman
Singh[6] would also be apt for  recapitulation  and,  therefore,  are  being
extracted below.
         “9. Coming to the ambit of power of the High  Court  under  Section
         401 of the Code, the High Court in its revisional  power  does  not
         ordinarily interfere with judgments  of  acquittal  passed  by  the
         trial court  unless  there  has  been  manifest  error  of  law  or
         procedure. The interference with the order of acquittal  passed  by
         the trial court is limited only to exceptional  cases  when  it  is
         found that the order under revision suffers from glaring illegality
         or has caused miscarriage of justice or when it is found  that  the
         trial court has no jurisdiction to try the case or where the  trial
         court has illegally shut out the evidence which otherwise ought  to
         have been considered or where the material evidence which  clinches
         the issue has been overlooked. These are the  instances  where  the
         High Court would be justified in  interfering  with  the  order  of
         acquittal. Sub-section (3) of Section 401 mandates  that  the  High
         Court shall  not  convert  a  finding  of  acquittal  into  one  of
         conviction.  Thus,  the  High  Court  would  not  be  justified  in
         substituting an order of acquittal into one of conviction  even  if
         it is convinced that the accused deserves conviction. No doubt, the
         High Court in exercise of its revisional power  can  set  aside  an
         order of acquittal if it comes  within  the  ambit  of  exceptional
         cases enumerated above, but it cannot convert an order of acquittal
         into an order of conviction. The only course left to the High Court
         in such exceptional cases is to order retrial.”

7.     The  above  consideration  would  go  to  show  that  the  revisional
jurisdiction of the High Courts while examining an  order  of  acquittal  is
extremely narrow and ought to be exercised only in  cases  where  the  Trial
Court had committed a manifest error of law or procedure or  had  overlooked
and ignored relevant and material evidence thereby  causing  miscarriage  of
justice.  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 revisional jurisdiction under the Code.  Needless to say, 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  re-trial  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 acquittal into one of conviction.

8.    In the present case, the  prosecution  had  examined  as  many  as  12
witnesses.  PW-1 Thiru Srinivasan is the father of the deceased whereas  PW-
2 Thirumathi Rani (petitioner before the High Court) is  the  mother.   Both
the aforesaid witnesses had stated in their depositions that  there  was  no
demand for dowry by the accused  and  that  the  accused  and  deceased  had
married on their own volition.  
The two witnesses had  further  stated  that
whatever was given by them as dowry items was voluntary.
Insofar as  demand
for cash (allegedly made on three different occasions)  is concerned,  PW-1 and PW-2 could not account for the source from which the aforesaid  payments were allegedly made.
PW-1 Thiru Srinivasan and  PW-2  Thirumathi  Rani  are
admittedly not eye witnesses to the occurrence because they had come to  the
house where the accused and the  deceased  had  lived  only  after  noticing
smoke from the said  house.   PW-3  Thiru  Vincent  (brother-in-law  of  the
deceased) and PW-4 Thirumathi Mary (sister of the  deceased)  are  also  not
eye witnesses to the occurrence.
It must also be taken  note  of  that  all
the aforesaid witnesses, i.e., PW-1 to PW-4 had deposed that when  they  had
reached the house of the deceased they saw her in flames  and  the  deceased
was unable to speak as there was  a  piece  of  cloth  in  her  mouth.  
The
aforesaid part of the prosecution story,  however,  does  not  find  support from  the  testimony  of  PW-11  Dr.  Santhakumar  who  had  conducted   the postmortem of the  deceased  inasmuch  as  in  cross-examination  PW-11  had clearly stated that he did not  find  any  blisters  in  the  mouth  of  the deceased.
PW-5 Thiru  Balaraman  did  not  sign  the  mahazar  (Exh.  P-10)
showing the seizure of a burnt kerosene can, a partially burnt saree  and  a
matchbox allegedly  recovered  from  the  place  of  occurrence.
PW-6  Dr.
Prakash had deposed that the deceased was brought to  his  clinic  at  about
7.30 a.m. on 19.4.2000 but considering the burn  injuries  suffered  he  had
referred the case to the government hospital.
PW-7  Dr.  Vijayalakshmi  had
deposed that though a magistrate had come to  the  hospital  to  record  the
dying declaration, the deceased was unconscious and not  in  a  position  to
make any statement.
PW-10 Dr. N. Usha  who  was  working  in  the  casualty
section of the Chennai Kilpauk Government Hospital  had  deposed  that  when questioned, the deceased Anusuya had reported to her that  she  got  injured due  to  bursting  of  the  stove  while  she  was  cooking.   
PW-11     Dr. Santhakumar had conducted the postmortem and the most  significant  part  of
his evidence has already been noticed hereinabove, namely, that he  did  not
find any blisters in the mouth of the deceased.  
PW-12  Thiru  Subramaniyam
is the Investigating Officer of the case who had, inter alia,  deposed  that the investigation did not disclose that the accused  had  harassed  or  ill-treated the deceased Anusuya prior to her death.

9.    In view of the specific case of the prosecution that
the  accused  had
poured kerosene on the deceased and thereafter  set  her  on  fire  and  had gagged her mouth with a piece of cloth to prevent her from screaming,  which version has been unfolded by PWs 1, 2, 3 and 4, 
it is difficult  to  see  as to how the charge against the accused-appellant under Section 304-B  of  the IPC  could  be  sustained.   The  evidence  of  PW-12  Thiru   Subramaniyam,
Investigating Officer of the case, that the  investigation  did  not  reveal
any harassment and ill-treatment of the deceased by  the  accused  prior  to
her  death  makes  the  prosecution  case  against  the  accused  under  the
aforesaid  Section  as  well  as  under  Section  498A  of  the  IPC  wholly
unsustainable.
Insofar as the offence under  Section  302  of  the  IPC  is
concerned, there is no eye witness to the occurrence.
PWs-1 to PW-4  though
examined as eye witnesses cannot be understood to  have  actually  witnessed
any of the events that  would  be  crucial  for  the  determination  of  the
liability of the accused-appellant.  
By the time they had reached the  place
of occurrence the deceased was already engulfed in flames.   
The  fact  that
PW-6 had stated that the deceased had come to his  clinic  unaccompanied  by
PWs 1, 2, 3 and 4 who in their depositions have  claimed  otherwise  is  too
significant  a  contradiction  to  be   ignored.    
There   is   a   further
contradiction in the evidence of PWs 1 and 2 on the one hand  and  PW-12  on
the other.  
According to PW-1 and PW-2 they had  made  a  complaint  to  the
police station immediately after the occurrence and thereafter went  to  the
hospital whereas PW-12 had deposed that the complaint was lodged after  PW-1
and PW-2 had returned from the hospital.  
The  evidence  of  PW-10   Dr.  N.Usha that the deceased herself had  stated  that  she  was  injured  due  to bursting of the stove while she was cooking casts a  further  doubt  on  the
prosecution story.  
The absence of the proof  of  seizure  of  the  material
objects, made by the Mahazar (Exh. P-10) and the contradiction  between  the
oral testimony and the contents of Exh. P-9 with regard to the actual  place
of occurrence, in our considered view, further  demolishes  the  credibility
of the prosecution version.  
In the above facts the view taken by the  Trial
Court in acquitting the accused cannot be held to be a  view  impossible  of
being reached.  
Keeping in mind the  extremely  limited  keyhole  available
for a scrutiny of the foundation of the order of  acquittal  passed  by  the
learned Trial Court the reversal ordered by the High Court does not  commend
to us.  We have also noticed that the High Court had found the order of  the
learned Trial Court to be vitiated by lack of clarity on several  counts  as
specified in its  order  dated  27.04.2006.   The  said  deficiencies,  when
juxtaposed against the reasoning of the learned Trial Court, appear to  have
been adequately answered by the learned Trial Court  in  the  light  of  the
evidence and the material brought before it.

10.   For  the  aforesaid  reasons  we  find  it  difficult  to  accept  the
conclusion reached by the High Court in the present matter.  We,  therefore,
allow this appeal, set aside the order of the High  Court  dated  27.04.2006
and restore the order of acquittal dated 16.07.2003 passed  by  the  learned
Trial Court.

                                       ...………………………CJI.




                                        .........……………………J.
                                        [RANJAN GOGOI]
New Delhi,
August 19, 2013.

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[1]   (1975) 4 SCC 477
[2]    (1973) 2 SCC 583
[3]    AIR 1968 SC 707
[4]    AIR1962 SC 1788
[5]    AIR 1951 SC 316
[6]     (1998) 7 SCC 223

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