Nand Kumar Singh @APPELLANT@Hash State of Jharkhand

Ratnaker Bhengra, J. Â

Heard the parties.

Instant revision application arises out of the judgment and order of acquittal dated 15.04.2008, passed by learned Additional Sessions Judge-XIII,

Dhanbad in S.T. No. 141/05, arising out of Dhanbad (Dhansar) P.S. Case No. 12/04, whereby opposite party Nos. 2 to 4 have been acquitted of the

charges levelled against them under Sections 147, 323/34, 304B/34, 498A/34 of the Indian Penal Code and under Sections 3 / 4 of the Dowry

Prohibition Act.

The case of the prosecution as per the fardbeyan of Renu Devi recorded on 07.01.2004 at 19:00 hours in the Central Hospital, Dhanbad in Burn

Ward at bed No.3, who died later on, is that she was married to Krishna Kumar Singh in March, 2003. After the marriage for some time she lived

properly but thereafter a demand of colour TV and gas stove was made from her by the members of her in-laws family. On 07.01.2004 since morning

her husband, father-in-law, mother-in-law, brother-in-law (dewar) and sister-in-law (nanad) were quarrelling with her and were demanding colour TV

and gas stove. At about 2:30 p.m. her husband, Nishant (dewar) and Putul (nanad) caught hold of her and her mother-in-law, Meena Devi, sprinkled

kerosene oil on her and father-in-law set her on fire. Thereafter, she was confined in the kitchen and when she raised hulla then the neighbours came

there and she was brought to the Central Hospital, Dhanbad for treatment.

On the basis of the above mentioned fardbeyan, a case was registered as Dhanbad (Dhansar) P.S. Case No. 12/04 under Sections 147/ 323/ 498A/

307 of the Indian Penal Code and under Sections 3 / 4 of the Dowry Prohibition Act.The police started investigation but during the course of treatment

on 21.01.2004 Renu Devi died in the hospital where the inquest report was prepared and the post mortem was done. After the investigation, charge-

sheet was submitted against five persons, namely, Krishna Kumar Singh @ Rinku, Radha Mohan Singh, Meena Devi, Nishant and Richa under

Sections 147, 323, 498A/ 304B/34 of the Indian Penal Code and under Sections 3 /4 of the Dowry Prohibition Act. Nishant and Richa were sent for

trial before the Juvenile Justice Board. The case of opposite parties Nos. 2 to 4 herein was committed to the Court of Sessions for trial and charges

were framed under Sections 147, 323/34, 304(B)/34, 498A/ 34 of the Indian Penal Code and under Sections 3 and 4 of the Dowry Prohibition Act.

The accused persons did not plead guilty and claimed to be tried.

PW-1, Ganesh Singh, a neighbour, deposed that on alarm being made that there is a fire in the house of Radha Mohan Singh he ran there and saw

that Renu Devi was burning and Krishna Singh was throwing water on her. Due to throwing of water, electrical shock was being received and he

instructed to cut off the main switch. Renu Devi was fallen on the ground. They wrapped her in a blanket. When an ambulance came, he, Krishna,

Sandeep, Ajay and others took Renu Devi to Central Hospital. Thereafter, they went to call Radha Mohan Singh from Godhar who was on duty.

There was a tea kettle on the heater, from which flames had been caught. In his cross-examination, he deposed that while throwing water on Renu,

Krishna had burnt a little of his hair. At the time of the incident Radha Mohan Singh was on duty. PW-2, Sandeep Kumar, is also a neighbour. He

deposed that on 07.01.2004 at about 3.00-3.30, he saw smoke coming out from the window. Krishna Kumar and his mother were screaming that fire

has erupted. They ran to their house and saw that Krishna Kumar’s wife was on fire. They threw water, due to which, current shock was

received. Thereafter, they cut off the electrical supply. When ambulance came, Krishna Kumar and others took her to hospital. At around 4

O’clock, he and Manish went to Godhar to call Radha Mohan Singh and returned with him at 6’O clock. He further deposed that Renu’s

mother-in-law and husband deposited money in the hospital and admitted Renu Devi.

That the accused possessed one colour TV and one Black & White TV in their house. He had also deposed that when they reached they saw Renu

Devi burning in the kitchen and tea fallen and the heater was on. When they threw water they also received current shock. He had also deposed that

the accused did not in any way torture Renu Devi and neither did they demand TV or gas stove. PW-3, Jitendra Kumar Singh is a neighbour. He had

deposed that on 07.01.2004 at about 2:00-2:30 in the afternoon, he was playing in the ground in front of the residence of Krishna Kumar. From the

roof of the house of Krishna Kumar, he heard alarm “bachao-bachaoâ€. He ran upstairs and saw that body of Krishna Kumar’s wife was

aflame and Krishna was throwing water. He also throw water, then he received current shock. Thereafter, main switch was switched off. They

threw blanket on Renu Devi and took her by ambulance to Central Hospital, Dhanbad. In his cross-examination, he deposed that alarm of “bachao-

bachao†was being made by Krishna Kumar’s mother. He further deposed that Jai Kumar called the mother of Renu Devi on the instruction of

Krishna Kumar. He had also deposed that Renu Devi was never tortured by the accused for the demand of dowry.

PW-4, Mrityunjay Kumar, is brother of Renu Devi. He was at his residence situated at Police Line. A boy from Gandhi Road informed him that his

sister Renu Devi had been severely burnt. On this information, he, his mother and his younger brother went to Central Hospital and saw that his sister

was screaming that her mother-in-law, father-in-law, younger brother-in-law (dewar), sister-in-law (nanad) and her husband had burnt her. At that

time, no member from her in-laws family was there in the hospital. His sister was brought from the Emergency Ward to Burn Ward. He then went to

make a call his father. On returning to the Burn Ward, he saw Tirkey Saheb taking the statement of his sister. His sister gave the statement that her

husband, sister-in-law and brother-in-law had caught hold of her, her mother-in-law sprinkled kerosene oil and the father-in-law put her aflame and

shut her in the kitchen, due to which, she was severely burnt. Neighbours took her to the hospital. At the time of the statement recording, he, Kalyani

Devi and his brother Devanjay were present. The statement was signed by his sister and brother Devanjay. This witness proved the fardbeyan, which

was marked as Ext.1. He further deposed that on the next day, his father came and took his sister for treatment to B.G.H., Bokaro. During the

treatment, his sister passed away on 20. 01.2004. He has proved his signature and the signature of his father, which have been marked as Ext. 2/1 and

Ext. 2, on the Panchanama. He further deposed that after her marriage, when his sister had come for the second time on the occasion of Chhat, she

had informed that her husband, brother-in-law and sister-in-law all quarrel with her for TV and gas stove and that in between she was also assaulted.

On hearing about this, his mother and father went to the matrimonial home of his sister and prayed to her father-in-law and mother-in-law that the

situation is not well at the moment and after the situation improves, they will give the items. He further deposed his sister told that on the day of the

incident, when her father-in-law returned from office, he asked his sister to make tea. In between this, they committed the incident.

He further deposed that whole body of his sister was burnt. He did not know, who had admitted his sister in the Central Hospital. His father got his

sister discharged for taking her to the Bokaro Hospital. The expenses for the discharge was paid by Krishna Kumar Singh and his mother. He further

deposed that when his sister was admitted to B.G.S, at that time, no accused was present there and that as long as his sister was alive, she was

talking. He further deposed that at B.G.S., Police or Magistrate had not taken the statement of his sister. On 21.01.2004, they handed over the body of

his sister to the accused for her cremation. He had deposed that when his sister was giving the statement, he was not present, at that time, he had

gone to make a phone call to his father and after ten minutes, when he returned, the statement was continuing. Immediately he went to the side of his

uncle. At that time, the statement was not complete. After the statement was complete, he returned. The Police showed him the statement and asked

him to read it, but, he had not signed on the statement. No signature on the statement was taken of his mother, Doctor, Compounder or Nurse present.

Finally, he deposed that he did not see any marks of assault on the body of his sister. His sister's whole body was burnt.

PW-5, Kalyani Devi, is mother of the deceased. She had deposed that incident is of 07.01.2004 at 3 O'clock. That day, two boys came on bike to

her residence and told her to go quickly to Central Hospital. She went with her sons Mrityunjay and Devanjay. She saw her daughter lying on the

stretcher and her body was covered with a blanket. She was crying and said that her sister-in-law Richa Kumari, brother-in-law Nishant Kumar and

husband Krishna Kumar had caught hold of her, Meena Devi poured kerosene oil on her and Radha Mohan set her aflame and they shut her in the

kitchen. She further deposed that she called her husband in Garhwa by phone, who came on the morning of 08.01.2004 and thereafter, took her

daughter to Bokaro. TV and gas stove were demanded from her daughter and due to non-fulfillment of demand of TV and gas stove she was burnt.

Her statement was taken before the Magistrate. In her cross-examination, she deposed that after marriage, when Renu Devi returned, at that time,

Renu had made no complaint to her against her in-laws. She further deposed that she had made no such statement to the Magistrate that the in-laws

of Renu had taken her to the hospital. On 07.01.2004 her daughter wanted to go to her maternal home, but, her husband did not allow her to go.

That when her daughter had come during Chhat Puja, she had told her that in-laws were demanding TV and gas stove. She further deposed that after

Chhat, they visited the house of her daughter's in-laws. They talked with the daughter and were informed that for TV and gas stove, she is being

harassed. On reaching the hospital, her elder son and herself went to make a phone call. After making phone call, they went to the Emergency Ward.

She further deposed that Police came there at 7 O'clock and took her statement. When her daughter was giving her statement, saline was being

administered to her daughter. She deposed that statement of her daughter was taken at 7:30 in the Emergency Ward and that throughout the night she

was in the Emergency Ward. Her daughter was taken to Bokaro for good treatment and her situation improved and she had also started eating and

was also recovering. The last rites was conducted by themselves.

PW-6, Nand Kumar Singh, is father of the deceased. He deposed that on 07.01.2004, he was posted as House Guard in the residence of SDPO,

Garhwa. On that date, at 6 O'clock, his son Mrityunjay informed by phone that Renu Kumari was burnt by her in-laws and she had been admitted to

Central Hospital. He reached Central Hospital, Dhanbad on 8. 01.2004 at 11 O'clock and saw that his daughter was severely burnt. He was unable to

talk to his daughter there. For better treatment, he took her to Bokaro General Hospital. In the Bokaro hospital, his daughter informed that for colour

TV and gas stove her mother-in-law, father-in-law, husband, brother-in-law and sister-in-law have burnt her and that the incident took place in the

kitchen room and when burning was taking place in the kitchen room, they shut the door of the kitchen from the outside. During her treatment, she

died. On 21.01.2004, a Police Officer came and took his statement. He further deposed that when his daughter had come home during Chhat festival,

she had informed that her in-laws were continuously demanding colour TV and gas stove. On this, his wife had gone to the place of her daughter's in-

laws and pleaded with them that currently they are in lot of debts and cannot fulfill the demands.

However, when they get some money, the demands will be fulfilled. In his cross-examination, he deposed that he had gone to his daughter's in-laws

place one or two times, but, he does not remember the dates. He was informed by his children that the in-laws of his daughter were demanding TV

and gas stove and harassing her. He further deposed that when he reached Dhanbad, at that time, his daughter was in the Burn Ward and she was

conscious and speaking, however, at that time, he did not consider it proper to speak to her. His daughter, after being admitted to the Dhanbad

Hospital and then to the Bokaro Hospital, was able to converse normally till the day before her death. He deposed that about 10-15 days ago, he had

gone to Shakti Mandir, Dhansar and from there, he had gone to meet his daughter and he had stayed there for 10-15 minutes. That time his daughter

informed him about the demand of TV and gas stove. He wanted to bring his daughter home, but, his daughter's mother-in-law did not allow so saying

that it is the month of 'Paush'. He further deposed that in BGS, he had paid Rs.15,000/- to 20,000/- for treatment. He deposed that when he met his

daughter in the Central Hospital, his daughter began crying and pleaded that she be saved and that her in-laws had burnt her alive. He further deposed

that Doctor had inquired from Renu, which he had written down. Lastly, he had deposed that last rites was conducted by themselves.

PW-7, Ravindra Prasad Singh, is the Police Inspector. He was the IO of the case. He deposed that he received the statement of Renu Devi at

20:30 hours. On the basis of this statement, FIR was registered. He deposed that he visited the place of occurrence, which is the Gandhi Road,

Dhansar Police Station residence of the accused. He described the location and place and deposed that he went up to the upper floor where the

accused lived. He entered the kitchen and saw the electrical heater on the shelf. On the door of the kitchen, he saw smoke marks. On 14.01.2004, he

received the fardbeyan of deceased which was taken at Bokaro Hospital and was brought by the father of the deceased himself. The statement of

Kalyani Devi under Section 164 Cr.P.C. was recorded. In his cross-examination at para-2 he deposed that there was a delay of 2 days in registering

the fardbeyan and beginning investigation. No reason for this is given in the case diary. He further deposed that there was no information regarding

how many persons were present when the fardbeyan was being recorded. He further deposed that he did not investigate about the mental condition of

the deceased at the time of recording of her statement and whether she was capable of giving a statement or not.

He further deposed that the in-laws of the deceased had taken her to Bokaro General Hospital and the in-laws had admitted her in Central Hospital,

Dhanbad. He also deposed that at the place of occurrence, he found no smell of kerosene oil. He also deposed that Jitendra Kumar Singh gave

statement to him that when he went to the second floor, he had seen that the body of Renu Devi was burning and Krishna Kumar was trying to put

off the flames. While trying to put off the fire, Rinku’s hair was also singed. He further deposed that when Renu was burning, the mother of

Krishna Kumar made alarm from the rooftop for help. On the day of the incident, the deceased wanted to go to her parental home on which Rinku

told her to come to his house, and thus she came home and put herself aflame. He further deposed that he had gone to Bokaro to take statement of

the deceased, but, she was not in a fit condition to give her statement. The expenses for treatment were given by the accused. During investigation, he

further found that the accused possessed a colour TV purchased on 23.09.2003. He deposed that in investigation he found from office papers that

Radha Mohan was at the time of the incident on duty at Godhar in his office. He also deposed that the deceased was not being harassed for colour

TV or gas stove. Finally, he deposed that on the bed head ticket he found the signature of Krishna Kumar and it is true to say that the deceased was

not in a condition to give a statement.

Arguments advanced on behalf of the petitioner:

Learned senior counsel for the petitioner had submitted that the necessary ingredients of Sections 304B and 498A of the Indian Penal Code and

Sections 3/4 of the Dowry Prohibition Act have been fulfilled by the prosecution by producing oral as well as documentary evidence before the

learned Trial Court. As such, the acquittal of the accused persons is not sustainable in the eye of law. Learned senior counsel had further submitted

that there is no denial from the side of the defence that the marriage of the deceased had not taken place within seven years, and neither that the

deceased had not died due to an unnatural death i.e. caused by any burn or bodily injury otherwise than under normal circumstances or that the

deceased had not died unnatural death in the matrimonial home. In such facts and circumstances of the case the accused persons had to say as to

how and under what circumstances the deceased had sustained burn injury resulting in her death but the accused persons kept mum and did not state

anything under Section 313 Cr.P.C. Learned senior counsel also submitted that the prosecution had also proved that the deceased was being tortured

and harassed soon before her death at the hands of her husband and his family members for or in connection with the demand of dowry. As such, the

admitted facts as well as the evidence brought by the prosecution on the record clearly attracts the presumption as to dowry death as enumerated

under Section 113B of the Evidence Act.

Learned senior counsel had further submitted that from the materials/ evidence available on the record it is evident that on the alleged date of

occurrence all the accused persons were present in the house when the deceased had sustained burn injury otherwise then under normal

circumstances and the burn injury was ante mortem and about 100 per cent deep burn injury. The Doctor had opined in the post mortem report that

burn injury did not appear accidental. The post mortem has been exhibited as Ext.3.

Learned senior counsel also submitted that PW-1, PW-2 and PW-3 are not the persons who could have knowledge about demand of colour

television and gas stove from the deceased or her family members i.e. father, mother and brother. As such, the finding of the learned Trial Court that

they have not stated about the demand of dowry, does not appear plausible and as such, the same cannot be sustained in the eyes of law.

Learned senior counsel also submitted that the deposition of the father, mother and brother of the deceased cannot be treated as the statements of

the highly interested witnesses and disregarded as because they are real and aggrieved witnesses who could have said about the demand of dowry as

because they were directly concerned to fulfill the demand of colour television and gas stove by the accused persons. Learned senior counsel further

submitted that the learned Trial Court discarded the evidence of the material witnesses only on the basis that they were related to the deceased and

further that no independent witness came to support the case of the prosecution.

Learned senior counsel had then submitted that the statement (fardbeyan) of the deceased should have been treated as dying declaration in the

eye of law by the learned Trial Court but the same has been discarded by the learned Trial Court without any justifiable reason. That the oral

statement made by the deceased had been corroborated by the prosecution witnesses and the same is also the oral dying declaration in the eye of law.

Learned senior counsel for the petitioner had in support of dying declaration, cited the judgment of the Hon’ble Supreme Court in the case of

“Laxman versus State of Maharashtraâ€, reported in 2003(3) East Cr C 24 (SC) and argued that the fardbeyan of the deceased in the case on

hand is fully reliable as a dying declaration because it was made in presence of some of the prosecution witnesses viz. the police personnel, who

recorded the fardbeyan in presence of one of the brothers of the deceased and this brother has also signed on the fardbeyan. Mother of the deceased

and another brother have also indicated that they were present in the hospital when the deceased was making statement.

Learned senior counsel for the petitioner has pointed out to the case of “Koli Chunilal Savji and another versus State of Gujaratâ€, reported in

1999(9) SCC 562, cited in the case of ‘Laxman’ (supra), wherein the Apex Court had held that if the materials on record indicate that the

deceased was fully conscious and capable of making a statement, the dying declaration of the deceased thus recorded cannot be ignored merely

because the doctor had not made the endorsement that the deceased was in a fit state of mind to make the statement in question.

Learned senior counsel has also quoted from paragraph-3 of the same judgment i.e. ‘Laxman’ (supra) wherein the Apex Court had

observed that,

“….What is essentially required is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind.

Where it is proved by the testimony of the Magistrate that the declarant was fit to make the statement even without examination by the doctor the

declaration can be acted upon provided the Court ultimately holds the same to be voluntary and truthful. A certification by the doctor is essentially a

rule of caution and therefore the voluntary and truthful nature of the declaration can be established otherwise.â€​

Learned senior counsel for the petitioner thus says that in the facts and circumstances of the case on hand, the fardbeyan of the deceased can be

fully considered as dying declaration.

Learned senior counsel for the petitioner has cited the rulings in the cases of “Kunhiabdulla and another versus State of Keralaâ€, reported in

AIR 2004 SC 1731; “Kamesh Panjiyar @ Kamlesh Panjiyar versus State of Biharâ€, reported in 2005 (2) East Cr C 3 (SC); “Rajinder Singh

versus State of Punjabâ€, reported in (2015) 6 SCC 477 and argued that soon before the death of the deceased, in the case on hand, demands and

harassments had been made upon her in the nature of dowry demand, which the deceased has indicated in the dying declaration. These demands and

harassments have also been indicated in the evidence of members of her own family i.e. her one of the brother PW-4 and also the mother PW-5 and

the father PW-6. Learned counsel, therefore, says that on the basis of the above mentioned three rulings, with reference to the demands and

harassments made soon before death, the case against the opposite parties-accused stands fully proved and established.

Learned senior counsel has also cited the judgments rendered in the cases of “Ram Briksh Singh and others versus Ambika Yadav and

anotherâ€, reported in (2004) 7 SCC 665; “Krishnan and another versus Krishnaveni and anotherâ€, reported in (1997) 4 SCC 241 and submitted

that for the interest of justice, this Court may either remit the case for retrial or decide the case even on its own immense power possessed under

Section 482 of the Code of Criminal Procedure.

Arguments advanced on behalf of Opposite Party Nos. 2 to 4:

Learned counsel had argued that it has to be seen that whether the fardbeyan purported to be of Renu Devi, the deceased, is a valid fardbeyan

and whether it can also be considered as a dying declaration. According to prosecution, after Renu Devi had received grievous injuries on the body,

she was taken to Central Hospital, Dhanbad wherein her fardbeyan was recorded by Assistant Sub Inspector of Police, P. Tirkey, around 7:00 p.m.

According to the fardbeyan, Renu Devi had read the document as well as got it read out, heard it, understood and then signed on it in the presence of

her brother, Devanjay Kumar. However, P. Tirkey, who had written the fardbeyan, had not appeared as witness in Court. Moreover, during

investigation not even the statement of P. Tirkey had been taken.

Learned counsel further argued that according to fardbeyan, the deceased had given the fardbeyan in presence of her brother, Devanjay Kumar,

but, even this brother, Devanjay Kumar had not been produced as a witness during the trial. Neither is there any explanation on behalf of the

prosecution, why this Devanjay Kumar had not been produced as a witness.

Prosecution had presented two witnesses, PW-4, Mrityunjay Kumar, brother of the deceased, and PW-5, Kalyani Devi, mother of the deceased,

who claimed to have been present during recording of fardbeyan. Counsel for the opposite parties stated that from the evidences it is seen that both

these witnesses were not present during the recording. PW-4 was making phone call to his father then and subsequently, he went to the side of his

uncle. PW-5, it is revealed was also making phone then, moreover she has deposed that the fardbeyan was recorded in the Emergency Ward, when it

was actually recorded in the Burn Ward. Therefore, both son (PW-4) and mother (PW-5) are untrustworthy and unreliable witnesses.

Learned counsel for the opposite parties pointed out that the prosecution had sought to make out that the fardbeyan was recorded by P. Tirkey,

Assistant Sub Inspector in presence of PW-4 and PW-5. Counsel for opposite parties says that PW-4 and PW-5 are already discredited. Moreover,

the Investigating Officer, Ravindra Prasad Singh, PW-7 deposed that the deceased was not in a position to give a statement. Counsel further pointed

out that it has been revealed that the deceased had received 100% burn injuries and also no statement or certification has been marked by any person

in authority or a Doctor that the deceased was in a stable and fit condition to make a statement.

Learned counsel for the opposite parties had also argued that the criteria of dowry demand and torture or harassment as per Section 304-B IPC is

also doubtful. He had submitted that there is variation in the evidence of the son (PW-4) who had deposed regarding dowry demand and harassment

while the mother and father of the deceased have not made any mention of such harassment. Counsel argued if the mother and father themselves do

not raise the issue of harassment/ torture, then can it be believed.

Further regarding demands for any dowry and any torture or harassment related to that, it has been deposed by PW-1, Ganesh Singh; PW-2,

Sandeep Kumar and PW-3, Jitendra Kumar Singh, who all are neighbours, that they were on visiting terms with Radha Mohan, but, they never saw or

heard that Renu Devi was being harassed, tortured or assaulted for dowry. Counsel had, therefore, argued that as per evidence of the neighbours

themselves, who were on visiting and friendly terms with the family of the deceased, they had no clue about any such dowry demands and

accompanying harassment and torture, therefore, ingredients of Sections 147, 323/34, 304B/34, 498A/34 of the Indian Penal Code and under Sections

3 / 4 of the Dowry Prohibition Act are not fulfilled.

Learned counsel for the opposite parties further pointed out that contrary to the evidence of PW-4, PW-5 and PW-6 that in-laws of Renu Devi

had fled away and that the last rites were conducted by themselves, as per the evidence of PW-1, PW-2 and PW-3, it has been revealed that after

Renu Devi was burnt, her husband, Krishna Kumar and his neighbours immediately brought an ambulance and rushed her to Central Hospital and

admitted her there. They even paid the expenses for admitting her in the hospital. In their evidence, it has also come that the expenses were borne by

Meena Devi and Radha Mohan Singh. Learned counsel points out, more particularly, the evidence of PW-4, Mrityunjay Kumar, who is the brother of

the deceased and submits that in para-23 of his evidence, he has admitted that the expenses for the discharge was paid by Krishna Kumar Singh and

his mother and more importantly, in para-27, he has deposed that they had delivered the dead body of the deceased to the accused for conducting last

rites and at that time, Radha Mohan Singh, Krishna Kumar and Meena Devi were present.

Learned counsel has also argued that there is a clear cut allegation against Radha Mohan Singh to have set fire to the deceased. However, PW-7,

who is the Investigating Officer, has clearly deposed that while investigating the office of Radha Mohan, he inspected the papers there and found that

at the relevant time, Radha Mohan was on duty in Godhar area office. DW-6, Ghanshyam Pd. Sinha (Welfare Inspector) has produced attendance

register relating to Radha Mohan Singh of 07.01.2004 in court. Therefore, from the evidence of both the Investigating Officer as well as Welfare

Officer, it is definitely made out that at the time of incident, Radha Mohan Singh was not at all present in the place of the alleged crime, and the

informant and the prosecution have tried to make out a grave crime on the basis of false allegation.

REASONS

Having heard both the counsels, gone through the records of the case and evidence and in the facts and circumstances following is observed:

(i) Firstly, we would like to refer the aspects that are obviously false allegations made by the prosecution to establish their case. First and foremost is

the allegation against Radha Mohan Singh that he was present during the occurrence and that he had set the deceased aflame. However, it has clearly

come in the evidence of IO, PW-7 that at the time of incident Radha Mohan Singh was not at all present in the place of occurrence. IO during his

investigation had found that at that particular time Radha Mohan Singh was at his place of duty. Moreover, DW-6 has also produced attendance

register which establishes that he was on duty and therefore, not at the place of occurrence. We have taken this aspect of the allegation first and

foremost because Radha Mohan Singh has also been alleged to be a participant of the crime and in fact, he was allegedly the one, who set the

deceased aflame. However, this is totally contradicted by the evidence of PW-7 and DW-6.

(ii) It has been pointed out that the fardbeyan was recorded by P. Tirkey, Assistant Sub Inspector of Police of Saraidhela Police Station around 7:00

p.m. and Renu Devi had got the document read out to her, understood and signed on it in the presence of her brother Devanjay. It is surprising that

this Devanjay Kumar, who signed on the fardbeyan has not been examined to establish or prove the fardbeyan, neither the Assistant Sub Inspector of

Police, P. Tirkey has also been examined, even though, he happens to be in the same Department as PW-6. It is, therefore, creates much doubt right

at the inception as to why these two persons who signed on the fardbeyan not come forward as witnesses. There is even some suspicion regarding

the recording of the fardbeyan. Two witnesses have been presented to prove the fardbeyan i.e. PW-4, Mrityunjay Kumar and PW-5, Kalyani Devi,

who is mother of the deceased. In the evidence of PW-4, Mrityunjay Kumar, he has deposed that during treatment his sister was taken from the

Emergency Ward to Burn Ward and thereafter he had gone to make a phone call to his father. On returning, he saw Tirkey Saheb recording the

fardbeyan of his sister. As per the evidence of PW-4, he was going in and out from the Burn Ward and deposed that he finally returned after the

statement was recorded. Therefore, it cannot be accepted that he saw or was a witness to the recording of the fardbeyan, when he was simply going

in and out of the Burn Ward.

(iii) Similarly, PW-5, Kalyani Devi had been presented as one of the witnesses, who is in a position to prove the fardbeyan because as per her

deposition, fardbeyan was recorded in her presence. However, she has deposed that Renu Devi had given her statement in the Emergency Ward,

which is in variance with her son PW-4, who had said it was made in the Burn Ward. So this aspect of location itself clouds the validity of the

fardbeyan. Further, she had also deposed that she had also gone to make a phone call to her husband and does not remember for how long she was

away. Therefore, both these witnesses PW-4 and PW-5 give different location regarding where the fardbeyan was recorded. Moreover, they were

making phone calls while the fardbeyan was being recorded, and Devanjay who signed on the fardbeyan and A.S.I., P. Tirkey who recorded it have

not come forward as witnesses to prove the fardbeyan. All this do not lead to convince us that the fardbeyan is a credible document.

(iv) Regarding the fardbeyan, another aspect also further makes the allegation not tenable is the argument that Renu Devi while making the statement

was not in a stable mental condition and she was not fit to make the statement. It is admitted that there was 100 per cent burn injuries sustained by the

deceased and IO PW-7, Ravindra Prasad Singh, has deposed in his evidence that the deceased was not in a condition to make the statement.

Therefore when the genesis of the entire prosecution story i.e. fardbeyan and the FIR is shrouded in grave doubt and cloud, the whole case of

prosecution becomes untrustworthy.

(v) PW-4, Mrityunjay Kumar deposed about his sister informing him about harassment in connection with demands on the occasion of Chhat, but his

mother Kalyani Devi PW-5 had in her cross-examination deposed that when her daughter had come after marriage she had stated that her in-laws

used to treat her well. Therefore, there is variation or even contradiction regarding the evidence of son and the mother in the aspects of demand and

harassment. PW-6, Nand Kumar Singh, father of the deceased-girl, has not said anything about such harassment and torture for any dowry in his

examination-in-chief though in his cross examination he had stated about demand of colour TV and Gas Stove when she came during Chhat. The

evidence of PW-1, PW-2 and PW-3, who are the immediate and adjacent neighbours, who have also said or deposed that they had not ever seen or

heard anything about any dowry demands or demands for any items and nor any harassment or torture for the same. From an objective point of view,

immediate neighbours, who were on visiting terms with their family would definitely have had some clue or some inkling regarding the harassment and

torture, and that the demands were being put forth, but, this is not the case. Even by the evidence of PW-1, PW-2, PW-3 and defence witnesses,

allegations for the offence under Sections 147, 323/34, 304B/34, 498A/34 of the Indian Penal Code and under Sections 3 / 4 of the Dowry Prohibition

Act are not made out. Learned Trial Court has analysed the entire material evidence on record before coming to a finding of Acquittal which does not

appear to be perverse. Reliance is placed on the judgment of the Apex Court on the scope of Revisional Power in a case of Acquittal. The Apex

Court in the case of “Venkatesan Versus Rani and anotherâ€​, reported in (2013) 14 Supreme Court Cases 207 in para-9 & 10 has held as under:

“9. The observations in para 9 in Vimal Singh v. Khuman Singh would also be apt for recapitulation and, therefore, are being extracted below:

(SCC pp. 226-27)

“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.â€​

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. The reappreciation 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 retrial 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.â€​

Hence, the acquittal is sustainable.

For all the aforesaid reasons, we are of the considered opinion that the petitioner has failed to make out any grounds for interference in the

judgment and order of acquittal dated 15.04.2008, passed by learned Additional Sessions Judge-XIII, Dhanbad in S.T. No. 141/05, arising out of

Dhanbad (Dhansar) P.S. Case No. 12/04 under the Revisional Powers of this Court.

This criminal revision is dismissed, accordingly.