Patna High Court CR. APP (SJ) No.105 of [SECTION]5 1 IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (SJ) No.105 of [SECTION]5 Arising Out of PS.Case No. -405 Year- [SECTION]1 Thana -SUPAUL District- SUPAUL 1. [ENTITY] S/o Bhavi Sharma Resident of Village Simra, Police Station & District Supaul. Appellant/s Versus 1. The [ENTITY] Respondent/s Appearance : For the Appellant/s : Mr. [ENTITY], Adv. For the Respondent/s : Mr. [ENTITY], APP CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI CAV JUDGMENT Date: 08-01-[SECTION]8 Being aggrieved by and dissatisfied with the judgment of conviction dated 19.01.[SECTION]5 and order of sentence dated 27.01.[SECTION]5 passed by Additional Sessions Judge-2nd, Supaul in Sessions Trial No. 39/[SECTION]2 whereby and whereunder appellant, [ENTITY] has been found guilty for an offence punishable under [SECTION] of the [ACT] and sentenced to undergo RI for 10 years, convict/appellant challenged the same under instant appeal. 2. [ENTITY] filed a written report on 14.10.[SECTION]1 alleging inter alia that on 13.10.[SECTION]1 at about 9:00 AM when he came to the place of his sister [ENTITY] lying at village, Simra, she was not at all present whereupon he inquired from his brother-in-law with regard to her whereabout over which, he disclosed that his sister is missing since 8:00 AM. Then thereafter, he along with his co- villagers made hectic search but in vain. In the morning of 14.10.[SECTION]1
, when they again visited the place of his sister, her dead body has been found in her Angan. On query, he came to know that the dead body has been brought by [ENTITY] from the pond of [ENTITY]. It has further been narrated that he (brother-in-law) along with his mother were accustomed to assault the deceased. They were also coercing her to bring dowry and for that, undue pressurization was exerted. It has also been disclosed that some of the villagers handed over the appellant to police custody. So he apprehended that [ENTITY] might have committed murder of his sister sharing common intention with others.
3. [ENTITY] was registered under [SECTION], [SECTION], [SECTION] of the [ACT] followed with investigation as well as submission of charge-sheet facilitating the trial, meeting with ultimate result, subject matter of the instant appeal.
4. Defence case as is evident from the mode of cross- examination as well as statement recorded under [SECTION] [ACT] is that of complete denial. Furthermore, specific plea has been taken up that deceased had begotten a child a few days ago who met with unnatural death as a result of which, deceased suffered with depression whereunder, she committed suicide by way of drowning herself in the pond. However, neither any DW nor any kind of documentary evidence has been adduced on his behalf.
5. While assailing the judgment impugned, it has been submitted on behalf of learned counsel for the appellant that the learned lower court failed to assign any cogent, legal reason in order to draw inference against the appellant relating to offence punishable under [SECTION] [ACT]. In order to buttress such plea, it has been submitted that right from initial version the prosecution case suffers from vagueness as in the written report there happens to be complete absence with regard to date of marriage, specific instance of torture meted out in relation thereto more particularly soon before her death. In the aforesaid background, it has been submitted that whatever evidences have been adduced on behalf of prosecution during course of trial happen to be an after thought as well as purposely, intentionally been introduced and that being so, the material development has been seen in the evidence of each and every PWs on that very score. The learned lower court should have appreciated the same and would have opined that the aforesaid infirmities in the prosecution case was sufficient to dethrone the version of the prosecution.
6. It has further been submitted that from the nature of evidence, it is manifest that two kinds of evidence are available on the record. The first one is of co-villagers of the appellant who completely demolished the allegation of the prosecution with regard to demand of dowry as well as torture while the other part happens to be that of [ENTITY] who have, as flashed hereinabove, on account of exaggeration in their evidences, could not be considered as reliable. It has also been submitted that be that as it may, even [ENTITY] have not claimed to be an eyewitness to occurrence nor had expressly depicted any incident whereupon, the learned lower court could have an occasion to believe that the deceased had ever meted out with cruelty on account of demand of dowry ultimately costing her life. Furthermore, the objective finding of the Investigating Officer also rules out genuineness in the version of the prosecution and that being so, the judgment of conviction and order of sentence recorded by the learned lower court happens to be illegal, perverse and is fit to be set aside.
7. Per contra, it has been submitted by the learned APP that from the judgment impugned, it is apparent that the learned lower court had picked up and discussed all the issues whereupon drawn an inference regarding guilt of the appellant and that being so, did not attract interference. That being so, the instant appeal is fit to be dismissed.
8. In order to substantiate its case, prosecution had examined altogether 13 PWs who are PW-1, [ENTITY], PW-2, [ENTITY], PW-3, [ENTITY], PW-4, [ENTITY], PW-5, [ENTITY], PW-6, [ENTITY], PW-7, Dr. [ENTITY], PW-8, [ENTITY], PW-9, [ENTITY], PW-10, [ENTITY], PW-11, [ENTITY], PW-12, [ENTITY] and PW-13, [ENTITY]. Side by side, also exhibited Ext-1 Postmortem Report, Ext-2, Fard-e-beyan, Ext-3, Inquest Report.
9. After hearing rival parties as well as going through the record, it is evident that on account of slackness on the part of the learned lower court many flaws persisted which went unheeded and on account thereof, this appeal needs proper scrutiny and for that, the following points are formulated:-
A. Whether the judgment impugned is fit to be confirmed. B. Whether on account of non adaptation of direction of Hon'ble Apex Court needs remand. C. Whether appellant is liable for conviction and sentence under [SECTION] of the [ACT].
10. Before entering into in depth discussion, independently with regard to points so formulated hereinabove, salient feature is to be taken note of. From the record, it transpires (i) that there happens to be error in format of charge as the learned lower court had framed charge under [SECTION] of the [ACT] in following way (1) "That you on or about 30th day of October [SECTION]1 at Simra PS, Distt-Supaul, have committed murder of [ENTITY] by bodily injury etc for dowry. During course of statement under [SECTION] [ACT] the questionnaire which the court had formulated and confronted is as:-
Prashna: Aapke Virudha Sakshya Hai Ki Dinank 13.10.[SECTION]1 Ko Aapne Apni Patni [ENTITY] Ko Kuchh Logon Ke Saath Milkar Dahej Ke Karan Hatya Kar Sakshya Vilupt Karne Hetu Lash Ko [ENTITY] Ke Pokhar Mein Phenk Diya Tha ?
11. from the dated of 29.03.[SECTION]2, it is evident that the learned lower court had made no scrutiny of the material so placed in terms of [SECTION] of the [ACT] whether charge under [SECTION] was appropriate one or [SECTION] [ACT] or attracting alternative charge.
12. From the nature of the evidence, it is apparent that PWs-1 to 6 have not supported the case of the prosecution whereupon, they all were declared hostile. The most surprising feature as well as dubious conduct of the prosecutor is evident from the record itself as while examining PW-13, the Investigating Officer, evidence of none of these witnesses (PWs-1 to 6) were confronted nor the court on its own took pain.
13. Now-a-days, such kind of activity taken up by the court is frequently perceived and that being so, undue advantage is being availed by the accused due to imbecility of the court which has been subject to kittle as held by the Apex Court in Best Bakery Case reported in (2004) 4 SCC 158
14. Now coming to the remaining evidences, PW-8 to PW-12 are the persons who belong to [ENTITY]. PW-8, during his examination-in-chief at para-8 had deposed that for the last one year the appellant was demanding Rs. 25,000/- in cash as well as a she-buffalo. In para-9, he had deposed that [ENTITY] was married to [ENTITY] about 5 years ago.
15. PW-9 had deposed that his sister, [ENTITY] was married with [ENTITY] about three years ago. He had further stated that his brother-in-law used to assault his sister prior to the occurrence which was usually intimated by the deceased. He was demanding Rs. 25,000/- as well as a she-buffalo.
16. PW-10 had deposed that [ENTITY] was married with [ENTITY] about three years ago. Her Duragaman was effected after two years of marriage. Then had deposed that [ENTITY] had telephonically demanded Rs. 25,000/- as well as a she-buffalo, otherwise, threatened to eliminate [ENTITY].
17. PW-11 had stated that [ENTITY] was married with [ENTITY] about four years ago. Her Duragaman was effected and then thereafter, he advanced demand of Rs. 25,000/- as well as a she-
buffalo. He used to torture her.
18. PW-12 had said that [ENTITY] was married with [ENTITY] about 3-4 years ago. One year thereafter, Her Duragaman was effected. Subsequently thereof, demanded of Rs. 25,000/- as well as a she-buffalo was advanced.
19. [SECTION] [ACT] attracts following ingredients for completion of a dowry death:-
A. The death should be within seven years of marriage. B. The death should be by burn, bodily injury or otherwise than normal circumstance. C. There should be demand of dowry and for that, deceased would have been tortured soon before her death D. By her husband or relative of the husband.
20. From the evidence (examination-in-chief alone) available on record so referred hereinabove, it is apparent that they are not at all consistent with regard to demand of dowry as well as torture having over the person of deceased soon before her death and that being so, the major link is found missing. Unless and until there happens to be proper evidence having been adduced on behalf of prosecution satisfying each and every component of [SECTION] of the [ACT] then, and then only, presumption as provided under [SECTION] of the [ACT] though rebuttable is to be perceived by the court. Missing of any of the link would not allow the presumption to come in between whereupon not only the court will be precluded from inferring adverse to the accused rather the court will be constraint to observe that prosecution as miserably failed to substantiate its case beyond reasonable doubt.
21. Before beginning with second head, it looks desirable to discuss the medical evidence. PW-7 had conducted postmortem on 14.10.[SECTION]1 and found the following:-
1. External Injury:- i) Hematoma over right molar Promineu 2" x 2" x 1". ii) Multiple incised wound of different size & shape (varying from 1/3" to 2/3") on frontal skull bone, Molar Promineu and right maxillary bone. iii) Rt. Eye was bulging & muscle was lacerated. iv) incised wound over lower lip about 1/3"
Internal Injury on dissection:- Head & neck.
1) [ENTITY] was lacerated over frontal area of the skull. Brain material was also lacerated over frontal area with clotted blood.
2) Tongue was lacerated on posterior surface
3) Tracheal cavity was full of blood and tracheal ring was intact. Both chamber of heart was found empty.
Cause of death:- Respiratory track obstruction due to underlying injury caused by sharp substance.
22. Although the learned lower court during course of recording of evidence of PW-7 had not mentioned time elapsed since death but from the Ext-1, it is evident that postmortem was conducted on 2.20 PM on 14.10.[SECTION]1 and as observed time elapsed since death is within 24 hours.
23. From the inquest report, Ext-3, it is evident that the dead body was found inside Angan of the accused which the Investigating Officer, PW-13, reiterated that the dead body was found in the court yard of the house of appellant, [ENTITY]. So, from the evidence of the doctor PW-7, it is evident that the deceased was done to death on account of ante-mortem injuries caused by sharp cutting weapon whereupon, the respiratory system was found duly choked due to presence of blood which ultimately cost her life and that part of finding is found unsacked.
24. Criminal trial is not only confined to the interest of accused rather it also takes care of the interest of the victim or the sufferer. Because of the fact that death of the daughter-in-law usually occurs at her [ENTITY] within four corners of her house under the dominance of her [ENTITY] supported by their kith and kin, on account thereof, in majority of the case, [ENTITY] are totally ignorant with regard to criminal activity of [ENTITY] and that being so, the majority of the cases ultimately, concluded in judgment of acquittal giving clean chit to the culprit and that happens to be the matter of concern before the Hon'ble Apex Court. Ultimately, in the case of Rajbir v. State of Haryana reported in ([SECTION]0) 15 SCC 116 had directed all the subordinate courts through out India to frame alternative charge under [SECTION] of the [ACT] wherever a charge under [SECTION] of the [ACT] is framed. For better appreciation, relevant para is quoted below:-
"7. We further direct all trial Courts in India to ordinarily add [SECTION] to the charge of [SECTION], so that death sentences can be imposed in such heinous and barbaric crimes against women. Copy of this order be sent to Registrar Generals/Registrars of all High Courts, which will circulate it to all trial Courts.
25. In the case of Jasvinder Saini v. State (Govt. of NCT of Delhi) reported in ([SECTION]3) 7 SCC 256 as well as in Vijay Pal Singh v. State of Uttarakhand as reported in ([SECTION]4) 15 SCC 163 aforesaid principle has been subject to consideration.
26. Certainly, there happens to be flagrant violation of the direction of the Hon'ble Apex Court as from the order dated 29.03.[SECTION]2, it is evident that the learned lower court had not cared to see, scrutiny the materials having been collected during course of investigation in terms of [SECTION] [ACT] in order to trace out whether the material so collected would justify framing of single charge or alternative charge was warranted. That being so, there happens to be non appreciation of the case in terms of [SECTION] of the [ACT] and in likewise manner, the learned P.P. also failed to discharge his function in terms of [SECTION] [ACT].
27. It is true that error whatever been during course of framing of charge is not going to identify the proceeding as illegal in the background of some sort of relaxation having been provided on that very score in accordance with [SECTION] [ACT] and further, has been settled at rest that on account of deficiency or irregularity adopted by the learned lower court during course of recording of statement under [SECTION] [ACT] on account of having its failure from confronting the accused with the relevant incriminating materials having been collected during course of trial, will not make any kind of dent in the criminal prosecution.
28. In Yogesh Singh v. Mahabeer Singh ([SECTION]7 CrLJ 291), it has been held as follows:-
48. It was further contended by the learned counsel for the respondents that material questions regarding marriage, on which the prosecution had allegedly relied upon, were not put to the accused under [SECTION] [ACT], thereby causing great prejudice to them. We feel that there is no weight in this submission of the learned counsel for the respondents since the purpose of [SECTION] is only to bring the attention of the accused to all the inculpatory pieces of evidence to give him an opportunity to offer an explanation if he chooses to do so. As has been succinctly held by this Court in Raj Kumar Singh @ Raju @ Batya Vs. State of Rajasthan, ([SECTION]3) 5 SCC 722:
"In a criminal trial, the purpose of examining the accused person under [SECTION] [ACT], is to meet the requirement of the principles of natural justice i.e. audi alterum partem. This means that the accused may be asked to furnish some explanation as regards the incriminating circumstances associated with him, and the court must take note of such explanation."
49. We feel that no such prejudice has been caused to the accused on account of the failure of this Court to examine them under [SECTION] on the facts alleged by the prosecution since they were not incriminating in nature. In any case, Nar Singh Vs. State of Haryana, ([SECTION]5) 1 SCC 496, is an authority for the proposition that accused is not per se entitled for acquittal on the ground of non-compliance of mandatory provisions of [SECTION] [ACT]
29. Now coming to the third aspect, it is apparent that the dead body of deceased was seen on 14.10.[SECTION]1 in the house of appellant and for that, inquest report was prepared. The dead body was sent for postmortem and Ext-2 is the postmortem report. From the evidence of the witnesses as well as from the Ext-2, 3 along with evidence of PW-13, it is evident that the deceased had died on account of ante-mortem injury caused by sharp cutting weapon. Although, prosecution witnesses PW-8 to PW-12 have stated that on the first day they had not found [ENTITY] but on the second day they had seen the dead body of the [ENTITY] in the house of the appellant having ante- mortem injuries over her dead body. Furthermore, on query they were disclosed by the neighbours that accused/appellant had brought up the dead body from the pond of [ENTITY] which is not at all found supported by the postmortem report, Ext-2. Apart from this, there happens to be no evidence on that very score wherefrom it could be perceived that any body had seen the accused/appellant taking out the dead body from the pond of [ENTITY]. Furthermore, as evidence relating to [SECTION] of the [ACT], as referred hereinabove have been found sketchy while from the evidence of it is conclusively found that the deceased along with husband were only occupants of the house, he was arrested from the spot as is evident from the evidence of PW-13, the dead body was found inside his house, on account thereof, he was accountable to explain in terms of [SECTION] of the [ACT] for the murder of the deceased. [SECTION] of the [ACT] read with [SECTION] [ACT] provide an opportunity for the court to record conviction for an offence irrespective of non framing of charge may be major or minor, though minor offence is guided by [SECTION] [ACT] and on that very score, the conviction and sentence would not be interfered with. The aforesaid situation has been elaborately dealt with in Amar Nath Mahto v. [ENTITY] as reported in [SECTION]7(3) BBCJ 202, as well as in Lallan Kumar vs. [ENTITY] ([SECTION]7 (3) PLJR 281).
In [PRECEDENT], it has been held as follows:-
"24. One of the cardinal principles of natural justice is that no man should be condemned without being heard, (Audi alterum partem). But the law reports are replete with instances of courts hesitating to approve the contention that failure of justice had occasioned merely because a person was not heard on a particular aspect. However, if the aspect is of such a nature that non-explanation of it has contributed to penalising an individual, the court should say that since he was not given the opportunity to explain that aspect there was failure of justice on account of non- compliance with the principle of natural justice."
30. However, considering the ambit and scope of power exercised by the appellate court so prescribed under [SECTION] of the [ACT], it is apparent that whenever appellant is to be found guilty for graver offence prescribing enhanced sentence, then in that event, the appellant is to be noticed.
In Prithipal Singh v. State of Punjab reported in ([SECTION]2) 1 SCC 10, it has been held as follows:-
35. In [PRECEDENT], this Court held :
"6. We should at once remove the misgiving that the new [ACT], has abolished the High Court's power of enhancement of sentence by exercising revisional jurisdiction, suo motu. The provision for appeal against inadequacy of sentence by the State Government or the Central Government does not lead to such a conclusion. High Court's power of enhancement of sentence, in an appropriate case, by exercising suo motu power of revision is still extant under [SECTION] read with [SECTION] [ACT], inasmuch as the High Court can "by itself call for the record of proceedings of any inferior criminal court under its jurisdiction. The provision of [SECTION] is a bar to a party, who does not appeal, when appeal lies, but applies in revision. Such a legal bar under [SECTION] does not stand in the way of the High Court's exercise of power of revision, suo motu, which continues as before in the new Code."
36. In Surendra Singh Rautela @ Surendra Singh Bengali v.
[ENTITY] (Now State of Jharkhand), AIR 2002 SC 260, this Court reconsidered the issue and held:
"It is well settled that the High Court, suo motu in exercise of revisional jurisdiction, can enhance the sentence of an accused awarded by the trial Court and the same is not affected merely because an appeal has been provided under [SECTION] of the Code for enhancement of sentence and no such appeal has been preferred."
(See also: [PRECEDENT]; [PRECEDENT]; and [PRECEDENT].
37. In [PRECEDENT], this Court held that the suo motu powers of enhancement under revisional jurisdiction can be exercised only after giving notice/opportunity of hearing to the accused.
38. In view of the above, the law can be summarised that the High Court in exercise of its power under [SECTION] [ACT] is competent to enhance the sentence suo motu. However, such a course is permissible only after giving opportunity of hearing to the accused.
31. Furthermore, as per roster Single Judge has been nominated to deal with the sentence inflicted to the extent of RI for 10 years, that being so, the present controversy goes out of purview of this Bench. As such, directing the office to issue show cause notice against the appellant as to why he be not convicted and sentenced for an offence punishable under [SECTION] [ACT], is also directed to list the instant appeal before Division Bench after taking necessary permission of Hon'ble the Chief Justice.
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