IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA FRIDAY, THE 13TH APRIL 2007 / 23RD CHAITHRA 1929 Crl.Rev.Pet.No. 873 of 1999() ----------------------------- CRA.177/1997 of ADDL. SESSIONS COURT, THRISSUR CC.26/1993 of CHIEF JUDICIAL MAGISTRATE COURT, THRISSUR .................... REVN. PETITIONER/APPELLANT/ACCUSED: ----------------------------------------------- RAJANUDEVAN, S/O.SANKARA NARAYANAN, PENGAMUKKU, EDAKKUNNI DESOM & VILLAGE, THRISSUR DISTRICT. BY ADV. SRI.P.VIJAYA BHANU SRI.S.R.MANOJ RESPONDENT/RESPONDENT/COMPLAINANT: -------------------------------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.C.K SURESH THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 13/04/2007, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.HEMA, J. ----------------------------------------------- Crl.R.P. No.873 of 1999 ----------------------------------------------- Dated this the 13th day of April, 2007. O R D E R Revision petitioner was charge-sheeted for offences under Sections 498A and 306 of Indian Penal Code. The case was committed by the Magistrate Court to the Sessions Court, but the Sessions Court found that there is no material on record to frame a charge for offence under Section 306 of I.P.C. and the case was sent back to Magistrate Court. Charge was framed by Magistrate Court for offence under Section 498-A of I.P.C and after trial, accused was convicted and sentenced to undergo rigorous imprisonment for one year for offence under Section 498-A of I.P.C. In appeal, learned Sessions Judge confirmed the conviction and sentence. This revision is filed against the said conviction and sentence. 2. According to prosecution, on 28.1.1990 at about 10 p.m., deceased Geetha committed suicide by consuming poison from the house of her husband, who is the accused. The accused allegedly subjected deceased Geetha to cruelty and thereby he committed offence punishable under Section 498-A of I.P.C. To prove the Crl.R.P. No.873/1999 2 prosecution case, PW1 to PW24 were examined and Exts.P1 to P18 were marked. 3. Both the courts concurred on the findings that deceased Geetha committed suicide at the house of revision petitioner and she was subjected to cruelty by petitioner. PW1 and PW2 who are the parents of deceased Geetha and PW3, her uncle supported the prosecution case and deposed about harassment by the accused on deceased Geetha. Both the courts below believed the version given by PW1 to PW3 and rejected the contentions that the alleged harassment etc. is an improved version. 4. Heard both sides. Perused records. Learned counsel appearing for revision petitioner pointed out various contradictions in the evidence and other discrepancies etc. and argued that revision petitioner is entitled for an acquittal. He also submitted that the incident happened as early as in 1990, and 17 years have elapsed now. Revision petitioner got re- married and he has two children in the wedlock. Hence, leniency may be shown in the sentence, if at all conviction is confirmed. Sentence may be reduced, it is submitted. Crl.R.P. No.873/1999 3 5. Learned Public Prosecutor supported the concurrent findings of the courts below and submitted that there is no ground to interfere in the concurrent findings of facts. According to prosecution, the wilful conduct of the accused was of such a nature as was likely to drive deceased Geetha to commit suicide. Having committed suicide and having proved that the accused is guilty of wilful conduct of such nature, which is likely to drive deceased Geetha to commit suicide and she having committed suicide, the accused committed offence under Section 498A I.P.C., it is argued. 6. On hearing both sides and on going through the records in this case, it is doubtful whether this is a probable case of suicide. It also appears to me that the case suffered distortion at the hands of a police officer, who played a one- man game from the beginning till end. I will first deal with the First Information Statement. The first information statement was lodged by accused and it is stated therein that there were quarrels between deceased Geetha, mother-in-law and accused himself had beaten the deceased Geetha more than once and she had even left the husband's house on account of this. She Crl.R.P. No.873/1999 4 was brought back again to the matrimonial house. 7. Thus, there are sufficient indications in first information statement itself to make out a case under Section 498A IPC, but it appears that crime was deliberately registered under the caption “unnatural death” and it appears that this might be done to avoid inquest being conducted by a superior police official. The inquest was caused to be done by Executive Magistrate, avoiding a Circle Inspector. Thereafter, PW 24 himself took all steps in investigation. 8. PW 24 himself prepared Ext.P15, the scene mahazar. As per the original entry in Ext.P15, the mats and mosquito net were examined in detail and the net contained a “small piece of Pottassium Cyanide” almost in a dissolved state etc. But, doctor has no case that the death was due to consumption of “Pottassium Cyanide”. It has also come out from Chemical Analyst's report and evidence of doctor, PW23 who conducted postmortem examination that “Hydrocyanic acid” was detected in viscera and blood and doctor opined that death was due to “Hydrocyanic acid poisoning”. Hydrocyanic acid is a liquid whereas Pottassium Cyanide is a crystal/solid. Crl.R.P. No.873/1999 5 9. In Ext.P15 scene mahazar, originally it is recorded that mosquito net contained a small “piece” of Pottassium Cyanide in a semi-dissolved state. But, the said portion is seen struck off from scene mahazar. There is no explanation why such an important entry in Ext.P15 is struck off. It is doubtful whether it was struck off, since doctor's opinion that the death was due to hydro cyanic acid which is a liquid may go against the entries. It is also relevant to note that death will be immediate if pottassium cyanide is consumed but deceased Geetha survived for sufficient time after consuming poison and was taken from hospital to hospital which is also against a case of “pottassium cyanide” poisoning. 10. As per the first information statement given by accused deceased had brought a “paper packet” and when there was tussle for possession of the packet, she had bitten the packet and she died due to “Pottassium Cyanide” poisoning. It is also seen recorded in Ext.P18 wound certificate also that while accused was attempting to snatch away the packet, deceased Geetha had bitten the accused and he had sustained injury on his finger. Crl.R.P. No.873/1999 6 11. It is well known that Pottassium Cyanide is a highly poisonous substance and death would be imminent, if a person consumes it, as per various scientific papers. But, according to prosecution, deceased was taken to hospital and she survived for considerable length of time, which is inconsistent with Pottassium Cyanide poisoning. 12. In this context, Ext.P14 the inquest also is to be looked into. It contains a statement of the father and mother of deceased Geetha. The inquest report shows that deceased's father, mother and two neighbours were questioned. Out of these 4 persons, father and mother stated that deceased Geetha died on administration of poison on the deceased against her consent. They alleged a case of murder. They stated that either her husband or mother-in-law would have administered poison on her against her wish and consent. 13. The expression used by them in their statements is that poison was “poured” into the mouth. This statement tallies more with the doctor's opinion coupled with the Chemical Analyst's report that the death was due to “hydro cyanic acid” which is a liquid. But, in spite of what is specifically alleged Crl.R.P. No.873/1999 7 as state above, in Ext.P6 in column no.6 in the inquest report, it is stated that there was an “unanimous” statement that deceased Geetha had committed suicide by taking poison out of some frustration in life. 14. It is not understood how such a conclusion could be arrived at, when the statements recorded from the deceased's mother and father indicate a clear case of alleged homicide by “pouring” poison into the mouth of deceased. It can be seen from the evidence of PW24 that parents of deceased Geetha, PW1 and PW2 were questioned by the Executive Magistrate but they were not questioned by the Investigating Officer, PW24. There is no explanation why deceased parents were not questioned by the Investigating Officer, PW24 even though their evidence is of much relevance especially, since the inquest report itself contains their statement indicating cause of death as homicide. 15. Right from the beginning, a strange procedure is seen adopted by PW24. Though a reading of first information statement given by the accused himself reveals there are materials which are sufficient to register a crime at least under Crl.R.P. No.873/1999 8 Section 498-A I.P.C. against him as well as his mother, no crime was registered under Section 498-A I.P.C. There is no explanation for non-registration of crime for such offence against the accused and his mother. It is also relevant to note that though the accused himself had given the first information report revealing offending acts incriminating himself and his mother which has led to the death of a pregnant woman, aged 23 years, who is also having a 3 ½ years old child, very strangely, the Sub Inspector did not even detain or take the accused into custody. He was let free. 16. The accused was not arrested at all in this case in the course of investigation by PW24, the Sub Inspector but he obtained anticipatory bail (Rather he was allowed to obtain anticipatory bail). Necessarily, a question will arise why this sort of strange steps were taken by the Sub Inspector in this case. It may be justifiably contended that he was trying to avoid the Circle Inspector's intervention in investigation and that is why the FIR itself was registered under the caption “unnatural offence” and inquest was caused to be conducted by the Executive Magistrate, PW21, so that none of the senior officials Crl.R.P. No.873/1999 9 had to touch the file. Except the Sub Inspector, no other official had any role in investigation. 17. PW23, the doctor who conducted examination on the body of deceased, deposed that there were as many as six anti- mortem injuries on the body of the deceased. There was contused grazed abrasion 1x1.5 cm. downwards and outwards on left forehead. There was contused abrasion on lower back area 3 cm. outer to outer angle at left eye. There was abrasion on the right elbow. There was linear abrasion 1.5 cm. long, oblique with dry brown scalp, on back of lower knuckle of right index finger. The doctor observed that all these injuries are anti-mortem injuries. But absolutely no investigation was conducted into the presence of ante mortem injuries on the deceased Geetha. 18. No investigation was done, regarding the medical aid which was given to deceased Geetha, immediately after the incident. From the First Information Statement itself, it appears that deceased Geetha was taken to different hospitals. If it was a case of “Pottassium Cyanide” poisoning, as alleged by the accused, it is doubtful whether deceased Geetha would survive Crl.R.P. No.873/1999 10 to be taken to different hospitals because it is well-known that Pottassium Cyanide poisoning leads to immediate death. 19. At least, the above fact ought to have alerted any reasonable person to investigate into the truth of the allegation in the first information statement regarding pottassium cyanide poisoning. The injuries on the deceased must also caution any reasonable police official to doubt veracity of the allegation made in the First Information Statement. But, no evidence was collected from the first hospital where she was taken. From the conduct of the Investigating Officer, the omission and failures may not be treated as inadvertent but those appears to be motivated. 20. At any rate, trial court did not look into the records produced along with Section 173 (2) of the Code to see what offence is made out in this case as per records. The court was, in fact, taken for a ride by PW24's opinion that it is a suicide, though the records produced along with police report indicate that it might not be suicide. At least, the court ought to have considered the necessity to insist for a further report to confirm as to what was the cause of death and whether it was a case of Crl.R.P. No.873/1999 11 suicide itself. Both courts below lost sight of many material facts and proceeded as though it is a case of suicide. 21. Thus, the framing of charge itself was wrong and illegal. When the records do not lead to a presumption of suicide, the court ought not to have framed charge on the ground that it is a case of suicide. No court shall blindly proceed merely on an opinion made by a police officer in the final report to decide what offence is committed by accused. The court shall not allow itself to be deceived by an investigating officer in correctly reporting the act which is committed by accused. The court shall examine the entire records produced along with final report before framing charge. But, in this case, the court below did not look into the records placed before court but mechanically acted upon the opinion expressed by Investigating Officer that this is a case of suicide. 22. On consideration of the facts and circumstances I find that the trial court went wrong in framing charge for offence under Section 498 A IPC on the assumption that this is an “admitted” case of suicide. Lower appellate court also erred Crl.R.P. No.873/1999 12 in proceeding on the same assumption which is not consistant with the records in this case. Thereby, the whole trial is vitiated. 23. A revisional court cannot be a mere spectator to this state of affair. The duty of the court is not merely to see whether there is compliance of provision of law or not. The court shall also make sure that no injustice is done to any party by cleverly misusing provisions of law. The revisional court is not powerless to interfere in fit cases to undo the injustice caused in wrongly framing charge by being misled by the opinion of a police officer which appears to have deliberately given such opinion with an ulterior motive. 24. Anyway both the courts below proceeded as though this is an “admitted” case of suicide. If evidence of PW1 and PW2 is looked into carefully and the materials on record are perused, it cannot be said that this is an “admitted” case of suicide. Therefore, justice demands and warrants an interference. Learned Public Prosecutor filed a petition under Section 173(8) of the Code of Criminal Procedure to send the case for investigation. On the facts and circumstances of the Crl.R.P. No.873/1999 13 case, I am satisfied that nothing shall stand in the way of doing justice, as held by the Supreme Court in Zahira Habibulla H.Sheikh v. State of Gujarat (2004) 4 SCC 158) known as “Best Bakery Case”. 25. It is held in Best Bakery Case that though justice is depicted to be blindfold, as popularly said, it is only a veil not to see who the party before it is while pronouncing judgment on the cause brought before it by enforcing law and administering justice, and not to ignore the materials which will warrant interference at the instance of the court. Learned Public Prosecutor also cited decision in Hasanbhai Valibhai Qureshi Vs. State of Gujarath & Others [2004 (5) SCC 347] to argue that if the principles laid down in the said decision are accepted, this is one of the fittest cases in which a further investigation has to be ordered. In the light of the dictum laid down in the decisions referred above, such a direction cannot be said to be illegal, it is argued.. 26. Anyway, the conviction for offence under Section 498A IPC cannot be sustained since the courts below went wrong in proceeding with the case as though it is an “admitted” Crl.R.P. No.873/1999 14 case of suicide, which does not gain support from the records. In the peculiar facts and circumstances of the case, the error in framing charge for offence under Section 498A IPC on the ground that this is a case of suicide cannot be made a ground to acquit accused. The proper course will be to quash the charge and send the case back for fresh disposal, in accordance with law. It is true that normally in a revision filed by the accused, an order cannot be passed which will be prejudicial to the accused. But, the court has suo motu powers under Section 397 of the Code for correcting any error, illegality impropriety etc. in this order, or findings especially when such illegality etc. results in gross miscarriage of justice. It can also use powers under Section 482 of the Code to secure justice. 27. On the facts and circumstances of this case to secure ends of justice, it is essential to quash the charge and remand the case to the trial court for fresh consideration and disposal in accordance with law untrammalled by any of the observations made in this judgment, if any, on the merit. If that is not done, it will even adversely affect public confidence in public authorities. I am not passing any direction for further Crl.R.P. No.873/1999 15 investigation in the petition filed by the State, since this case is being remanded. The Magistrate Court shall consider the request for reinvestigation, if a petition is filed before the said court for such purpose. The State is at liberty to file a petition before the Magistrate Court itself. In the result, the following order is passed : (i) The order under challenge is set aside. (ii) The order framing charge and all subsequent proceedings are also quashed. (iii) The conviction and sentence passed against petitioner under Section 498A IPC are set aside. (iv) The case is remanded to the Magistrate Court for fresh consideration and disposal in accordance with law. (v) If any petition is filed for further investigation, it shall be considered and disposed of by the Magistrate Court, in accordance with law. This revision petition is disposed of accordingly. (Sd/-K.HEMA, JUDGE). Krs. /True copy/ P.S to Judge