P.B.Kohli vs Keshav Verma And Another

1 Through the medium of instant revision petition, the petitioner has called into question the judgment dated 03.08.2013 passed by the learned Principal

Sessions Judge, Udhampur (hereinafter referred to as the ‘trial Court’) in challan titled ‘State vs. Keshav Verma and another (File No.

31/Sessions) for offences under Sections 306/498-A/34 RPC.

2 Petitioner claims to be the father of deceased, namely Mamta Devi, who, as per the challan filed by the investigating agency before the trial Court, is

stated to have died on 11.05.2005 due to burn injuries received by her. The petitioner has challenged the impugned judgment whereby the

accused/respondent Nos. 1 and 2 herein have been acquitted of the charges for commission of offences under Sections 306/498-A/34 RPC on the

grounds that the investigation in the case has been conducted in a very casual manner; that most of the witnesses have been withheld by the

prosecution; that the findings of the learned trial Court are against the law; that the learned trial Court failed to appreciate the statements of the

prosecution witnesses in its right perspective, particularly that of PW Baghisha and that the learned trial Court has overlooked the vital evidence.

3 Learned counsel for the respondents has raised a preliminary objection with regard to maintainability of the instant revision petition on the ground

that the State has not chosen to file an appeal against the impugned judgment of acquittal and that a revision petition filed by a prosecution witness

against the judgment of acquittal is not maintainable, particularly when Section 417 of J&K Cr.P.C provides for remedy of appeal by the State against

the judgment of acquittal.

4 The instant case was set down for hearing a number of times, but the petitioner, after appearing initially on some dates of hearing, stopped appearing

in the case. In fact, none has appeared on his behalf for the last five consecutive dates of hearing. Therefore, the matter has been taken up for

disposal in absence of the petitioner.

5 Briefly stated the case of the prosecution is that on 05.05.2005, a lady, namely Mamta Devi (hereinafter referred to as the ‘deceased’) was

admitted to GMC, Hospital, Jammu as she had received burn injuries. The said lady succumbed to her injuries on 11.05.2005 and the police started

inquest proceedings under Section 174 of Cr.P.C. During these proceedings, statements of witnesses under Section 175 of Cr.P.C were recorded.

PW Baghisha, the minor daughter of the deceased in her statement recorded under Section 175 of Cr.P.C narrated that the respondents in connivance

with (1) Jagdish, (2) Ajay, (3) Shashi, (4) Lovely, (5) Ravi, (6) Yash Pal and (7) Raju had assaulted the deceased with stick and thereafter poured

kerosene oil and acid on her body and set her on fire.

6 On the basis of aforesaid statement, a case for offences under Sections 302/120-B/498-A RPC came to be registered. During investigation of the

case, the statements of witnesses under Section 161 Cr.P.C were recorded, but neither any witness supported the version of occurrence given by PW

Baghishah, nor the traces of acid were detected on the wearing apparel of the deceased. PW Baghisha was produced before the Magistrate for

recording her statement under Section 164 Cr.PC. However, the Magistrate observed that her statement cannot be recorded because she does not

have a mature understanding. Accordingly, the investigating agency reached a conclusion that the offences under Section 302/120-B RPC are not

made out against the respondents. The investigating agency, however, came to the conclusion that respondent No.1, the husband of the deceased used

to demand dowry from her and her parents. It was further found that respondent No.1 was a habitual drunkard and the deceased disliked this

behavior. It was also found that respondent No.2, who was a close friend of respondent No.1, used to visit the house of respondent No.1 and both

used to consume alcohol together in the house of respondent No.1 which annoyed the deceased. The investigation further revealed that on the date of

occurrence, both the respondents were in a drunken condition in the house of respondent No.1 and this could not be tolerated by the deceased, as a

result of which, she committed suicide by putting herself on fire. Accordingly, the investigating agency filed the chargesheet for offences under

Sections 306/498-A/34 RPC against the respondents.

7 Initially, the learned trial Court framed the charges for offences under Sections 306/34 RPC against the accused, but subsequently pursuant to the

directions passed by this Court in Criminal Revision Petition No. 88/2005 on 04.09.2006, charges for offences under Sections 306/498-A RPC were

framed against respondent No.1, whereas charges for offences under Sections 306/498-A/34 RPC were framed against respondent No.2. The

learned trial Court, after recording statements of as many as 12 prosecution witnesses and one defence witness, acquitted the respondents on the

ground that the case suffers from serious infirmities and that right from the initial stage, the investigation has been handled in a very casual manner.

8 Before proceeding to examine the merits of the case, we need to deal with the preliminary objection raised by the respondents with regard to

maintainability of the instant revision petition.

9 Provisions contained in Section 417 of J&K Cr.P.C show that it is the primary responsibility of the State to file an appeal against the judgment of

acquittal and in case the judgment of acquittal is passed in a case instituted upon a complaint, the appeal can be filed by the complainant subject to

grant of leave by the High Court. Thus, statutory right to file an appeal in a case instituted upon a police challan is the sole prerogative of the State.

Even though, under the Central Cr.P.C, Section 378, a right is given to a victim to file an appeal against the judgment of acquittal, yet there is no such

corresponding provision in the J&K Cr.P.C.

10 The petitioner in the instant case has invoked the revisional jurisdiction of this Court under Section 435 & 439 of J&K Cr.P.C. Normally, no

criminal revision in respect of an order which is appealable at the instance of the State could/should be entertained. However, the High Court, in

exercise of its powers under Section 435 of J&K Cr.P.C, is vested with the jurisdiction to call for and examine the record of any proceedings before

inferior criminal court situate within its local jurisdiction for the purpose of satisfying itself as to the correctness, legality or propriety of any finding,

sentence or order.

11 The Supreme Court in the case of K. Chinnaswamy Reddy vs. State of A.P. and another, 1963 3 SCR 412, after reviewing the earlier decisions,

prescribed the extent of jurisdiction of the High Court in the matter of interfering in revision against an order of acquittal in the following manner:

It is true that it is open to a High Court in revision to set aside an order of acquittal even at the instance of private parties, though the

State may not have thought fit to appeal; but this jurisdiction should in our opinion be exercised by the High Court only in exceptional

cases, when there is some glaring defect in the procedure or there is a manifest error on a point of law and consequently there has been a

flagrant miscarriage of justice. Sub-section (4) of a. 439 forbids a High Court from converting a finding of acquittal into one of conviction

and that makes it all the more incumbent on the High Court to see that it does not convert the finding of acquittal into one of conviction by

the indirect method of ordering retrial, when it cannot itself directly convert a finding of acquittal into a finding of conviction. This places

limitations on the power of the High Court to set aside a finding of acquittal in revision and it is only in exceptional cases that this power

should be exercised. It is not possible to lay down the criteria for determining such exceptional cases which would cover all contingencies.

We may however indicate some cases of this kind, which would in our opinion justify the High Court in interfering with a finding of

acquittal in revision. These cases may be: where the trial court has no jurisdiction to try the case but has still acquitted the accused, or

where the trial court has wrongly shut out evidence which the prosecution wished to produce, or where the appeal court has wrongly held

evidence which was admitted by the trial court to be inadmissible, or where material evidence has been overlooked either by the trial court

or by the appeal court, or where the acquittal is based on a compounding of the offence, which is invalid under the law. These and other

cases of similar nature can properly be held to be cases of exceptional nature, where the High Court can justifiably interfere with an order

of acquittal; and in such a case it is obvious that it cannot be said that the High Court was doing indirectly what it could not do directly in

view of the provisions of section 439 (4)â€​.

12 The above principles have been reiterated by the Supreme Court in the cases of Mahendra Pratap Singh vs. Sarju Singh and another, AIR 1968 SC

707.

13 The aforequoted legal position on the issue makes it abundantly clear that it is only on limited grounds that the High Court would interfere with a

judgment of an inferior Court in exercise of its revisional jurisdiction. The question arises as to whether in the instant case, any of the circumstances

enumerated by the Supreme Court in K. Chinnaswamy Reddy’s case (supra) is made out. For this, we need to examine the impugned judgment

and the material on record.

14 As has been noted by the learned trial Court, there are three sets of evidence on record of the trial Court. One comprising the evidence of parents

and close relatives of the deceased. The other set of evidence is in the shape of statements of minor son of the deceased, tenant and the neighbourer

of the deceased and the third set comprising statements of the official witnesses. According to the parents and close relatives of the deceased

including PW Baghishah, the minor daughter of the deceased, it was a case of murder and the deceased was done to death by the respondents along

with other closed relatives of respondent No.1. The eye witness account of the occurrence has been given by PW Baghishah, the minor daughter of

deceased in her statement recorded during the inquest= proceedings as well as in her statement recorded before the Court. No other relative of the

deceased has claimed to have seen the actual occurrence. So, we have to focus on the statement of PW Baghishah. As per the grounds of revision,

the learned trial Court has not correctly appreciated the statement of PW Baghishah.

15 So far as PW Baghishah is concerned, she was about five years old at the time of the occurrence which means that she was a child witness.

Before analyzing her statement, we have to be clear in our mind as regards the law relating to reliability of the statement of a child witness. The

Supreme Court in the case of Bhagwan Singh and others vs. State of M.P (2003) 3 SCC 21 while relying upon its earlier judgment in the case of

Panchhi & ors vs. State of U.P (1998) 7 SCC 177) considered the question regarding the reliability of statement of a child witness and observed as

under:

“The law recognises the child as a competent witness but a child particularly at such a tender age of six years, who is unable to form a

proper opinion about the nature of the incident because of immaturity of understanding, is not considered by the court to be a witness

whose sole testimony can be relied without other corroborative evidence. The evidence of child is required to be evaluated carefully

because he is an easy prey to tutoring. Therefore, always the court looks for adequate corroboration from other evidence to his

testimonyâ€​.

16 Again in a recent case titled Hari Om alias Hero vs State of UP 2021 SCC Online SC 2, the Supreme Court has recapitulated and reiterated the

law pertaining to reliability of a child witness. Para 27 of the said judgment is relevant to the context and the same is reproduced as under:

“Admittedly, Bhavya (P.W. 2), who at the time of occurrence was about four years of age, is the only solitary eye-witness who was rightly

not given the oath. The time and place of the occurrence and the attending circumstances of the case suggest no possibility of there being

any other person as an eye-witness. The evidence of the child witness cannot be rejected per se, but the Court, as a rule of prudence, is

required to consider such evidence with close scrutiny and only on being convinced about the quality of the statements and its reliability,

base conviction by accepting the statement of the child witness. The witness of P.W. 2 cannot be discarded only on the ground of her being

of Teen age. The fact of being P.W. 2 a child witness would require the Court to scrutinise her evidence with care and caution. If she is

shown to have stood the test of cross-examination and there is no infirmity in her evidence, the prosecution can rightly claim a conviction

based upon her testimony alone. Corroboration of the testimony of a child witness is not a rule but a measure of caution and prudence.

Some discrepancies in the statement of child witness cannot be made the basis of discarding the testimony. Discrepancies in the deposition,

if not in material particulars, would lend credence to the testimony of a child witness who, under the normal circumstances, would like to

mix up what the witness saw with what he or she is likely to imagine to have seen. While appreciating the evidence of the child witness, the

Courts are required to rule out the possibility of the child being tutored. In the absence of any allegation regarding tutoring or using the

child witness for ulterior purposes of the prosecution, the Courts have no option but to rely upon the confidence inspiring testimony of such

witness for the purposes of holding the accused guilty or not.

This Court in Panchhi v. State of U.P. , held that the evidence of the child witness must be evaluated more carefully and with greater

circumspection because a child is susceptible to be= swayed by what others tell him and thus an easy prey to tutoring. The evidence of the

child witness must find adequate corroboration before it is relied upon as the rule of corroboration before it is relied upon as the rule of

corroboration is of practical wisdom than of law To the same effect is the judgment in State of U.P. v. Ashok Dixit,

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17 From the foregoing enunciation of law on the subject, it is clear that as a rule of prudence, the evidence of a child witness is to be considered with

close scrutiny and only on being convinced about the quality of statement and its reliability, conviction can be passed on the basis of statement of a

child witness. Further, the Court is required to rule out the possibility of a child witness being tutored before placing reliance upon its statement.

18 In the light of aforesaid principles, let us now have a look at the statement of PW Baghishah, who was about 5 years old at the time of the

occurrence. The said witness in her statement recorded during the inquest proceedings implicated both the respondents as well as the relatives of

respondent No.1 and she levelled a charge of murder against them. In her statement recorded under S.161 of Cr.P.C., though she reiterated the

theory of murder of the deceased, yet she contradicted her statement recorded during inquest proceedings. When, during investigation of the case, the

said witness was produced before the Magistrate for recording her statement under Section 164 Cr.P.C, the Magistrate did not record her statement

on the ground that the witness was not having a mature understanding. Finally, she was examined before the trial Court. However, in her statement

before the trial Court, there are contradictions and inconsistencies on the material aspects of the case. In her examination-in-chief, she has stated that

Ajay, the brother of respondent No.1 physically assaulted the deceased and then Raju as well as Yash Pal along with respondents herein poured

kerosene oil upon the deceased and set her to fire. In her cross examination, she exonerates both Raju as well as Yash Pal and states that they did not

commit any crime. She admitted that when she was produced before the Magistrate she had told the Magistrate that she was not knowing anything

about the case. Further, there is evidence on record to show that PW Baghishah, after the death of her mother has all along resided in her maternal

home, as such, her tutoring by the close relatives of the deceased cannot be ruled out.

19 Having regard to the aforesaid nature of statement of PW Baghishah, it would be highly unsafe to rely upon her statement and record conviction

against the respondents on her solitary statement. The learned trial Court has, after noticing the law relating to reliability of a child witness, rightly

discarded the statement of PW Baghishah and, therefore, no fault can be found with the course adopted by the learned trial Court in this regard.

20 So far as the other evidence on record in the shape of statements of close relatives of the deceased is concerned, they are admittedly not the eye

witnesses to the crime, therefore, their statements as regards the cause of death of the deceased are only hearsay in nature and as such not

admissible in evidence. Thus, the only admissible evidence regarding the version of occurrence given by PW Baghisha is her sole testimony. As

already noted, her testimony is full of inconsistencies and contradictions apart from being susceptible to tutoring. Therefore, it is highly unsafe and

hazardous to rely upon her statement.

21 So far as the statements of relatives of the deceased as regards the demand of dowry are concerned, the same are not specific about the dates,

about the articles and other particulars. Therefore, the learned trial Court has rightly refused to rely upon their evidence, the same being unbelievable

and shaky in nature.

22 Another set of evidence is in the shape of statements of the minor son of the deceased, PW Ashok Kumar, the tenant, who was living in the house

where the occurrence is stated to have taken place and PW Ramesh Chander, the neighbourer. According to these witnesses, the relations between

the deceased and respondent No.1 were cordial in nature and according to PW Parimoksh, the minor son of the deceased, his mother had died

because of leakage of gas. The independent witnesses PWs Ashok Kumar and Ramesh Chander have not supported the allegations of cruelty and

demands of dowry as highlighted by relatives of the deceased in their statements.

23 In the face of the aforesaid nature of evidence, there was no alternative left with the learned trial Court, but to acquit the respondents. It is not a

case where any material evidence has been overlooked by the learned trial Court, nor is it a case where the trial Court has shut out the evidence

which the prosecution wished to produce. In fact, the prosecution has taken as many as eight years to complete its evidence before the trial Court.

Hence, there is no question of not affording adequate opportunities to the prosecution to produce its evidence. Thus, the instant case does not appear

to be of exceptional nature where this Court would exercise its revisional jurisdiction.

24 For the foregoing reasons, the instant petition is held to be not maintainable for, the Court does not find the instant case to be of an exceptional

nature warranting interference by this Court in exercise of its revisional jurisdiction. Accordingly, the instant revision petition is dismissed.

A copy of this order along with original record be sent to the trial Court.