(Prayer: Revision filed under Section 397/401 of CrPC praying that in the circumstances stated in the affidavit filed in support of the Criminal Revision Case, the High Court may be pleased to prefer this Crl.R.C., aggrieved by the Judgment of the Court of the III Addl. Sessions Judge (FTC), Bhimavaram, dated 08.05.08 in S.C.No.64 of 2005.
IA NO: 1 OF 2008(CRLRCMP 1366 OF 2008
Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to dispense with the production of the certified copy of the Judgment in S.C.No.64 of 2005 on the file of the Court of the III Addl. Sessions Judge (FTC), Bhimavaram, dated 08.05.2008.)
1. This instant criminal revision case has been preferred against judgment and order dated 08.05.2006 in S.C.No.64 of 2005 on the file of the learned III Additional Sessions Judge (FTC), Bhimavaram, whereby and wherein the learned trial Court has acquitted the present respondent Nos.1 to 4/accused Nos.1 to 4 for the offence punishable under Section 304-B IPC.
Brief facts of the prosecution case:
2. One Seelaboina Sailaja was the daughter of present petitioners. Her marriage was solemnized with A1 on 28.06.2002 at the house of the petitioners according to Hindu Rites and Customs. At the time of marriage, an amount of Rs.5,00,000/- as dowry, Rs.50,000/- as adapaduchu lanchanams, 30 sovereigns of gold and Ac.4.00 cents of land were given besides some other household articles as customary gifts to the bride and bridegroom. After four months of their marriage, Sailaja was subjected to harassment and cruelty by accused persons on the demand of further dowry amounting to Rs.3,00,000/-. Accused persons also caused physical and mental agony to Sailaja. Coming to know about these facts, during Sankranti festival, petitioners gave an amount of Rs.40,000/- towards lease amount at the rate of Rs.10,000/- per acre for Ac.4.00 cents of land and requested accused persons not to harass their daughter Sailaja. However, Sailaja became pregnant but she was not allowed to contact with petitioners or any relatives, harassment and torture upon her was increased. On 25.05.2003, Sailaja visited petitioners’ house in connection with marriage ceremony, at that time, Sailaja informed petitioners that all the accused persons have been threatening her to kill her, if she could not bring additional dowry of Rs.3,00,000/-, on 26.05.2003 she returned back to her in-laws house. On 28.05.2003 afternoon at about 3.00 p.m., petitioners came to know over telephone that Sailaja was serious. On receipt of such information when petitioners rushed to the matrimonial house of Sailaja, they found she committed suicide by hanging. On the same day at about 8.00 p.m., PW.1/1st petitioner lodged a written complaint with the concerned police station. Thereafter, sessions case was registered against all the accused persons for charge under Section 304-B read with 34 IPC. During trial, Prosecution has produced 18 witnesses and some documents are also exhibited and marked as Ex.P1 to P.13. Contradictions of depositions of PW.1 and PW.2 were marked on behalf of the defence as Ex.D1 to D5. Some material objects are also marked as MO.1 to MO.5. After recording the evidences and hearing the parties, learned trial Court has found all the accused persons are not guilty for commission of offence under Section 304-B IPC and they were acquitted. Challenging the order of acquittal, this Criminal Revision has been filed preferred by the parents of deceased.
Submissions of petitioners’ counsel:
3. Learned counsel for the petitioners submits that the Sessions Judge has failed to appreciate the scope of Section 304-B IPC. Evidences of prosecution witnesses are corroborative in nature and so clinching that the offence against all the accused persons has been proved beyond reasonable doubt. The deceased was died by hanging at her matrimonial home within one year of her marriage only due to physical and mental harassment meted out by A1 to A4. Hence, the order of acquittal is bad in the eye of law. The learned trial Court has decided the matter in the wrong way by contradictions from the statements of PWs.1 and 2. Contradictions are not material in this particular case and they also cannot destroy entirely prosecution witnesses. There are sufficient evidence on record to prove harassment and torture upon deceased and cruelty for the purpose of securing more dowry, thus the ingredients of offence punishable under Section 304-B IPC has been justifiably made out. It is further argued that the learned Court below is of the view that as if the demand of dowry has been proved, he may record the conviction of accused persons under Section 498-A IPC. Thus, learned counsel for the petitioners prayed for necessary order.
Submissions of respondents/accused:
4. It is contented by the learned counsel for the respondents that there is no illegality and impropriety in the order passed by the learned trial Court. The learned trial Court has categorically recorded the evidence of prosecution witnesses. There are huge contradictions in the evidence of PW.1 and PW.2. Thus, offence punishable under Section 498-A IPC cannot be made out in the facts and circumstances of this case. The allegation of torture and harassment as stated by the prosecution witnesses, is general and omnibus. None of the witnesses stated about the nature of harassment. Learned trial Court has justifiably opined that the PWs are the relatives of deceased and interested witnesses, thereby, their witness cannot be based for conviction. He further submits that learned Sessions Judge has categorically observed that the evidence of PWs are hearsay which cannot be ground for conviction. Learned counsel for the respondents further argued that more than 20 years has elapsed since the allegation was placed before the police authority. During pendency of revision, two accused persons expired. Other accused persons are old aged persons. At this juncture, it would be inappropriate to pass any order for setting aside the impugned judgment. It is further submitted that being a Revisional Court, the High Court has very limited power to interfere with the finding of learned Sessions Judge. Hence, the Criminal Revision Case has no merit.
Submissions of State:
5. It is contended by learned Assistant Public Prosecutor that there are some witnesses, who stated about the harassment and torture meted upon the deceased by accused persons. Though PWs are relatives of deceased, but for this reason their evidence cannot be thrown out. It is further contended by the State that if the ingredients under Section 498-A IPC was proved, the learned Court below may record conviction under Section 498-A IPC.
Observation of the Court:
6. Heard the learned counsel for the parties. Perused the impugned order of acquittal passed by the learned trial Court.
7. It is no doubt that death was caused due to other than the normal circumstances and it was caused within one year of the marriage of deceased and A1. On plain perusal of the impugned order, at paragraph 38, it appears that the learned trial Court has recorded the gist of prosecution witnesses and value of prosecution witnesses. PW.1 and PW.2 are the parents of deceased. PW.3 is the brother of deceased. PW.4 is the maternal uncle of the deceased. PW.6 is one of the relatives of the deceased. PW.9 and PW.10 are the friends of the deceased. PW.1, PW.2, PW.3, PW.4, PW.6, PW.9 and PW.10 have stated about harassment before the Court, they heard from deceased that the accused persons meted torture and cruelty for the demand of additional dowry of Rs.3,00,000/- and a car. PW.3 is the brother of the deceased, who informed about an incident of torture in his presence. PW.1 and PW.2 being the parents has stated that when deceased came to their house in Sankranthi festival, she stated them that accused person demanded additional dowry and she was subjected to harassment and cruelty both physically and mentally to meted out the said demand. PW.6, PW.9 and PW.10 are the friends and relatives. They have also stated that the deceased informed them regarding the harassment and cruelty meted out by the accused persons both physically and mentally for demand of additional dowry. The learned trial Court is of view that PW.1 to PW.4, PW.6, PW.8, PW.9 and PW.10 are not direct witnesses, they are hearsay witnesses. It is also observed by the learned trial Court that none of the witnesses have described nature of harassment of cruelty faced by deceased in the hands of accused for additional dowry. It has further recorded that all the witnesses simply stated deceased was harassed and tortured by accused persons for additional demand of Rs.3,00,000/- and a car. On the basis of such observation, the learned trial Court is of view that prosecution established accused demanded an amount of Rs.3,00,000/- as additional dowry and a car but failed to establish the cruelty and harassment of accused towards deceased.
8. Let me consider whether the witnesses being PW.1 to PW.4, PW.6, PW.8, PW.9 and PW.10 are hearsay witnesses.
9. Section 60 of the Indian Evidence Act deals with direct evidence.
Section 60. Oral evidence must be direct:- Oral evidence must, in all cases, whatever, be direct; that is to say, -
If it refers to a fact which could be seen, it must be the evidence of a witness who says he saw it;
If it refers to a fact which could be heard, it must be the evidence of a witness who says he heard it;
If it refers to a fact which could be perceived by any sense or in any other manner, it must be the evidence of a witness who says he perceived it by that sense or in that manner;
If it refers to an opinion or to the grounds on which that opinion is held, it must be the evidence of the person who holds that opinion on those grounds:
Provided that the opinions of experts expressed in any treatise commonly offered for sale, and the grounds on which such opinions are held, may be proved by the production of such treatises if the author is dead or cannot be found, or has become incapable of giving evidence, or cannot be called as a witness without an amount of delay or expense which the Court regards as unreasonable;
Provided also that, if oral evidence refers to the existence or condition of any material thing other than a document, the Court may, if it thinks fit, require the production of such material thing for its inspection.
10. Following the provisions of Section 60 of the Indian Evidence Act, it is necessary that each and every witness should be directly stated regarding the involvement or statement or circumstances appearing in the fact in issue or relevant facts in the case itself which they personally saw, heard or perceived by other senses. In this particular case, admittedly witnesses are the relatives of deceased and they have not seen any fact of torture or harassment meted out by accused persons upon deceased for demand of dowry. Deceased only told them regarding the factum of torture. But learned trial Court failed to take note of evidence of PW.4, who stated one incident of scolding.
11. Torture and violence to married woman at her matrimonial house is a different nature of crime. In such type of crime, which committed in-house or violence conducted within the four walls of a house, is not possibly be looked or witnessed by any outsider. Moreover, to maintain family status and prestige, the family members generally did not meted out any harassment and torture to married woman (daughter-in-law) in public, by which, the family's prestige may got damage, thereby, all such disputes, violence and torture are meted inside the four walls of a house. In these types of cases, no direct evidence is possible. Victim being married wife of a family also carry some responsibility to protect prestige and social status of her matrimonial family, thereby, she never speak off these torture to any outsider, she only can disclose it to her parents and very close relatives of her parents side. It is true that PWs are close relatives of the deceased, but for that reason their evidence cannot be rejected entirely. Learned trial Court has brushed aside the entire evidentiary value of PWs only on the ground that they are hearsay witnesses. Surprisingly on the basis of their evidence, the learned trial Court has observed the demand for additional dowry of Rs.3,00,000/- and a car by accused persons has been established by prosecution, on the other hand, Court below has disbelieved regarding PWs statement of torture inflicted upon deceased by accused persons. The learned trial Court may have entirely believed the statement of PWs or entirely disbelieved the evidence of PWs. But in this case, the learned trial Court has partly believed and partly disbelieved the witnesses. Accordingly, the observation of the learned trial Court appears to be not correct in the present facts and circumstances of this case.
12. It further appears that the learned trial Court has failed to appreciate that within the span of marriage and suicide of deceased, she visited her father's house and also met with PWs, such evidences are appropriate in the present facts and circumstances. Whether it can be proximity to cause of death can only be tested through the law laid down by Hon'ble Supreme Court. In Vadivelu Thevar v. State of Madras reported in (1957) 1 SCC 700, wherein the Apex Court has guided that
“18. Generally speaking, oral testimony in this context may be classified into three categories, namely:
(1) Wholly reliable.
(2) Wholly unreliable.
(3) Neither wholly reliable nor wholly unreliable.
In the first category of proof, the court should have no difficulty in coming to its conclusion either way-it may convict or may acquit on the testimony of a single witness, if it is found to be above reproach or suspicion of interestedness, incompetence or subornation. In the second category, the court equally has no difficulty in coming to its conclusion. It is in the third category of cases, that the court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial.
19. There is another danger in insisting on plurality of witnesses. Irrespective of the quality of the oral evidence of a single witness, if courts were to insist on plurality of witnesses in proof of any fact, they will be indirectly encouraging subornation of witnesses. Situations may arise and do arise where only a single person is available to give evidence in support of a disputed fact. The court naturally has to weigh carefully such a testimony and if it is satisfied that the evidence is reliable and free from all taints which tend to render oral testimony open to suspicion, it becomes its duty to act upon such testimony. The law reports contain many precedents where the court had to depend and act upon the testimony of a single witness in support of the prosecution. There are exceptions to this rule, for example, in cases of sexual offences or of the testimony of an approver; both these are cases in which the oral testimony is, by its very nature, suspect, being that of a participator in crime. But, where there are no such exceptional reasons operating, it becomes the duty of the court to convict, if it is satisfied that the testimony of a single witness is entirely reliable. We have therefore, no reasons to refuse to act upon the testimony of the first witness, which is the only reliable evidence in support of the prosecution.”
13. In this case, learned trial Court considers testimonies of PWs as “neither wholly reliable nor wholly unreliable”. If Court considers those testimonies to be relevant then he has to circumscribe as to which part of such evidence is “wholly reliable and which part is wholly unreliable”. In scanning the testimony, Court has to form opinion through universal test of corroboration and value of clinching identification. In this case, learned trial Court failed to hold such test, reasons thereby, could not connect reliability of prosecution witness.
14. In view of the above, it appears to me that the order and judgment passed by the learned trial Court is not at all justifiable in the attending facts and circumstances of this case and there is palpable illegality.
15. In considering scope of Revisional Court to interfere with judgment passed in a criminal trial, the Hon’ble Apex Court in Amit Kapoor v. Ramesh Chander and another reported in (2012) 9 SCC 460 has observed as follows:
Section 397 Cr.P.C. vests the court with the power to call for and examine the records of an inferior court for the purposes of satisfying itself as to the legality and regularity of any proceedings or order made in a case. The object of this provision is to set right a patent defect or an error of jurisdiction or law. There has to be a well- founded error and it may not be appropriate for the court to scrutinize the orders, which upon the face of them bears a token of careful consideration and appear to be in accordance with law. Revisional jurisdiction can be invoked where the decisions under challenge are grossly erroneous, there is no compliance with the provisions of law, the finding recorded is based on no evidence, material evidence is ignored or judicial discretion is exercised arbitrarily or perversely. These are not exhaustive classes, but are merely indicative. Each case would have to be determined on its own merits.
Another well-accepted norm is that the revisional jurisdiction of the higher court is a very limited one and cannot be exercised in a routine manner. One of the inbuilt restrictions is that it should not be against an interim or interlocutory order. The Court has to keep in mind that the exercise of revisional jurisdiction itself should not lead to injustice ex facie. Where the Court is dealing with the question as to whether the charge has been framed properly and in accordance with law in a given case, it may be reluctant to interfere in exercise of its revisional jurisdiction unless the case substantially falls within the categories aforestated. Even framing of charge is a much advanced stage in the proceedings under the Cr.P.C.
Revisional jurisdiction exercised by the High Court is in a way final and no inter court remedy is available in such cases. Of course, it may be subject to jurisdiction of the Supreme Court under Article 136 of the Constitution of India. Normally, a revisional jurisdiction should be exercised on a question of law. However, when factual appreciation is involved, then it must find place in the class of cases resulting in a perverse finding. Basically, the power is required to be exercised so that justice is done and there is no abuse of power by the court. Merely an apprehension or suspicion of the same would not be a sufficient ground for interference in such cases.
The jurisdiction of the court under Section 397 can be exercised so as to examine the correctness, legality or propriety of an order passed by the trial court or the inferior court, as the case may be. Though Section 397 Cr.P.C does not specifically use the expression “prevent abuse of process of any court or otherwise to secure the ends of justice”, the jurisdiction under Section 397 Cr.P.C is a very limited one. The legality, propriety or correctness of an order passed by a court is the very foundation of exercise of jurisdiction under Section 397 Cr.P.C but ultimately it also requires justice to be done. The jurisdiction could be exercised where there is palpable error, non-compliance with the provisions of law, the decision is completely erroneous or where the judicial discretion is exercised arbitrarily.
16. Following the above principles laid down by the Hon'ble Apex Court, it appears that findings of the Sessions Court in passing the impugned order are grossly erroneous. The findings recorded by the learned trial Court is not based on material evidences. Though the revisional jurisdiction of this Court is very limited and cannot be exercised in a routine manner. It appears that the factual appreciation of evidences by the learned trial Court appears so palpable error which caused miscarriage of justice, thereby, led the learned trial Court to pass an order without basis, which is a perverse one. Reasons thereby, to secure ends of justice, it is necessary to remand the matter to the learned trial Court to pass a reasoned decision on the basis of the evidences already on the record.
17. Accordingly, the Impugned order of acquittal is hereby set aside.
18. Matter be remanded to the learned trial Court for fresh decision, on the basis of observations made herein above.
19. This Court makes it clear that the evidentiary value of PWs was not entirely gone through by this Court. It is open for learned trial Court to assess the evidentiary value of each and every PWs on the attending facts and circumstances and to pass a fresh decision according to law without being influenced by any observation of this Court.
20. The accused persons are directed to appear before learned trial Court on 17.09.2026; on their appearance, trial Court shall rehear the arguments of the parties and pass appropriate order as early as possible without allowing unnecessary adjournments.
21. Accordingly, the Criminal Revision Case is allowed. There shall be no order as to costs.
As a sequel, pending miscellaneous applications, if any, shall stand disposed of.
