Crl. Rev. No. 1223 of 2002 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH -.- Crl. Rev. No. 1223 of 2002 (O&M) Date of decision:- 5.1.2011 Nirmal Kaur ... Petitioner Versus Haryana State & Ors. ... Respondent CORAM:- HON'BLE MR. JUSTICE GURDEV SINGH Present:- Mr. P.S.Rana, Advocate, for the petitioner. Mr. Shekhar Mudgal, AAG, Haryana. Ms. Baljit Mann, Advocate, for respondent No.2. Gurdev Singh, J (oral) This revision petition against the judgment of acquittal has been preferred by Nirmal Kaur, sister of Vimal Kaur- deceased, regarding whose death FIR No. 358 dated 16.4.1997 was registered in Police Station Butana under Section 498-A and 304-B IPC. The facts, in brief, are that Vimal Kaur – deceased was married to Balwinder Singh son of Nishan kaur- respondent/accused on 14.3.1997. After marriage, the accused had been harassing her on the demand of dowry. The accused was told by her that her parents were poor and were not in a position to meet the demand of dowry and still she kept on harassing her. On 16.4.1997 her husband had gone for work whereas the present accused and the sister of her husband were present in the house. At about 2/2.30 PM she was working in the kitchen when the accused, after pouring kerosene Crl. Rev. No. 1223 of 2002 (O&M) -2- set her on fire. She was removed to Civil Hospital Karnal, where she was medically examined by Dr. Shashi Prabha PW/5, who found superficial to deep burns over her face and other parts of the bodies. The doctor sent her ruqa PJ/1 to the Police Station, on the receipt of which Jagdish Singh ASI, along with other police officials, came to the hospital. The ASI moved an application Ex.PL/1 before Ms. Shalini Singh, JMIC for recording the statement of the deceased. On the receipt of that application the Magistrate went to the hospital and found the deceased admitted in the Emergency Ward. She obtained the opinion of the doctor regarding her fitness to make her statement and thereafter recorded her statement Ex. PL/5. In that statement the deceased stated that she was working in the kitchen of her house, at about 2/2.30 PM, when the accused set her on fire by pouring the kerosene. ASI after making his endorsement on the copy of statement, obtained from the Magistrate, sent that to the police station and on the basis thereof FIR Ex.PN/1 was recorded. Thereafter, he proceeded to the place of occurrence and after inspecting the same prepared the rough site plan. Broken pieces of bangles, bolt of door and half burnt bed sheet were recovered from the spot, which were converted into separate parcels and were taken into possession vide memos PA, PB,PC and Ex.PD, respectively. One bottle of kerosene was also recovered, which was sealed by the ASI with his seal "JC" and after returning to the police station deposited the case property with the MHC. The deceased died in the hospital on 17.4.1997 and a written information about her death was sent to the police station. On the receipt of that information, the ASI came to the hospital and prepared inquest report Ex.PH/1 in respect of the dead body and sent the Crl. Rev. No. 1223 of 2002 (O&M) -3- same for post mortem examination. The autopsy on the dead body was performed by Dr. Benu Gupta, PW/2, who found superficial to deep burn injuries on the dead body and gave her opinion that the cause of death was extensive burn injuries, which were up to 91%. In the course of investigation the accused was arrested and after the completion thereof the challan was put in before the Judicial Magistrate, who committed the same to the Court of Sessions, on the ground that the offence under Section 304B IPC was exclusively triable by the Court of Session. On appearance of the accused, in the Court, copies of the documents relied upon by the prosecution were supplied to him as envisaged under Section 207 of the Code of Criminal Procedure (hereinafter referred to as the 'Code'). From those documents sufficient grounds were found for presuming that the accused committed offences under Sections 498-A and 304B IPC. She was charged accordingly, to which she pleaded not guilty and claimed trial. To bring home the guilt of the accused, prosecution examine Mahender Singh Constable PW-1, Dr. Benu Gupta PW-2, Dr.Lt.Col.M.P.Sawhney PW-3, Dr. Major Charanjit Kaur PW-4, Dr (Mrs.) Shashi Prabha PW-5, Shashi Sharma PW-6, Mrs. Shalini Singh PW-7, Mrs. Nirmal Kaur PW-8 and Sub Inspector Mohinder Kumar PW-9. After the close of the prosecution evidence, the accused was examined by the trial Court and her statement was recorded under Section 313 of the Code. The incriminating circumstances appearing against her in the prosecution evidence were put to her in order to enable her to explain the same. She denied all those circumstances and pleaded that she had been Crl. Rev. No. 1223 of 2002 (O&M) -4- advising the deceased not to visit the house of Joginder Singh and Nirmal Kaur every days as she was a newly wed girl. On that account the deceased as well as Nirmal Kaur and Joginder Singh were annoyed with her. At the time of occurrence she was away to the house of Sumitar Kaur, sister of her husband, and only her daughter Gurvinder Kaur was present in the house. The deceased bolted the door from inside and set herself on fire by pouring the kerosene. Gurvinder Kaur raised an alarm, which attracted Harbhajan singh, elder brother of her husband, to the spot, who forcibly pushed open the door and with the help of Gurvinder Kaur extinguished the fire. A message was sent to Nirmal Kaur and Joginder Singh immediately through Harbhajan Singh. A number of neighbourers gathered at that place. When Nirmal Kaur and Joginder Singh came to the spot they made enquiries from the deceased, who disclosed that she herself set her on fire on the ground that resitrictions were being put on her visit to their house. She was advised by them not to make such a statement before the authorities and involve her in-laws. The accused was called upon to enter upon her defence. She examined Harbhajan Singh DW1, Smt. Sumitar Kaur DW2, Balbir Singh DW3 and Gurvinder Kaur DW4, in her defence evidence. After going throught the evidence so produced and hearing public prosecutor for the State and learned defence counsel, the learned trial Court acquitted the accused. I have heard learned counsel for both the sides. It has been submitted by learned counsel for the petitioner that the trial Court committed an illegality while not relying upon the dying declaration of the deceased recorded by the Magistrate. It is very much Crl. Rev. No. 1223 of 2002 (O&M) -5- clear from the evidence produced on the record that the deceased was in a fit state of mind when her statement was recorded by the Magistrate. In that statement she clearly implicated the accused by deposing that it was she who set her on fire with the help of kerosence. When such an illegality has been committed the revisional jurisdiction of this Court is to be invoked so as to convert the finding of acquittal into that of conviction. From the evidence produced by the prosecution it stands proved that the deceased died within seven years of her marriage otherwise than under normal circumstances and soon before her death she was being harassed by the accused on the ground of demand of dowry. In that eventuality the dowry death is to be presumed by invoking the provisions of Section 113A of the Evidence Act. On the other hand, it has been submitted by learned counsel for the respondent/accused that no such illegality was committed by the trial Court while not relying upon so called dying declaration of the deceased. It was never stated by the Magistrate that the deceased was in a fit state of mind to make her statement and even the doctor, whose certificate was obtained by the Magistrate before recording the statement, was never put that certificate though she entered the witness box as PW-2. Moeover, that certificate does not disclose that the deceased was in a fit state of mind to make her statement and through-out, making of her statement remained fit and concious. In these circumstances power of this Court under Section 401 (3) of the Code does not extend to convert the finding of acquittal into a finding of conviction. She placed reliance on the judgment of Apex Court reported in Bindeshwari Prasad Singh @ B.P.Singh & Ors Vs. State of Crl. Rev. No. 1223 of 2002 (O&M) -6- Bihar (Now Jharkhand) and another, 2002(4) RCR (Criminal)61 . In this revision petition, which has been preferred by the private individual. The jurisdiction of the Court is very limited one. According to Section 401(3) of the Code, this Court cannot convert the finding of acquittal into one of conviction. It was held in Bindeshwari Parsad's case (Supra) that:- "Sub-section (3) of Section 401 in terms provides that nothing in Section 401 shall be deemed to authorise a High Court to convert a finding of acquittal into one of conviction. The aforesaid sub-section, which places a limitation on the powers of the revisional court, prohibiting it from converting a finding of acquittal into one of conviction, is itself indicative of the nature and extent of the revisional power conferred by Section 401 of the Code of Criminal Procedure. If the High Court could not convert a finding of acquittal into one of conviction directly, it could not do so indirectly by the method of ordering a re-trial. It is well settled by a catena of decisions of this Court that the High Court will ordinarily not interfere in revision with an order of acquittal except in exceptional cases where the interest of public justice required interference for the correction of a manifest illegality or the prevention of gross miscarriage of justice. The High Court will not be justified in interfering with an order of acquittal merely because the trial Court has taken a wrong view of the law or has erred in appreciation of evidence." Therefore, the interference by this Court is possible only it comes Crl. Rev. No. 1223 of 2002 (O&M) -7- to the conclusion that such an interference is necessary for correction of menifest illegality or the prevention of gross miscarriage of justice. The trial Court recorded detailed reasons for not placing reliance on the dying declaration of the deceased. It came to the conclusion that no evidence was produced by the prosecution that the deceased was in a fit mental state of mind when that dying declaration was recorded. That finding is based upon the appreciation of evidence. When Mrs. Shalini singh, Judicial Magistrate was examined in the Court as PW-7, she did not state even a single word about the mental fitness of deceased to make her statement. She relied upon the certificate obtained by her from the doctor, who is no one else but Shashi Prabha PW-5. That certificate was never put to her when she entered witness box. Even in that certificate it was not incorporated that deceased was in a fit mental state of mind to make her statement. No evidence was produced on the record that through out the recording of that statement, the deceased remained fit to make that statement. In these circumstances, no interference, while exercising the revisional, jurisdiction is called for and that too when the above said Section provides that this Court does not has power to convert the acquittal into conviction. The petition is dismissed accordingly. January 5, 2011 (Gurdev Singh) tripti Judge