State vs Sheik Uthuman Hakkim, Sheik Abdul Khader and Byrosa

Honourable Mr. Justice S. Palanivelu

This Criminal appeal filed u/s 378 of the Criminal Procedure Code to set aside the order of acquittal passed by the trial Court in S.C. No. 427 of 2002 dated 18.03.2004 on the file of the learned Additional District Judge, Magalir Neethamandram, (Mahila Court) Tirunelveli.

The following is the brief account of prosecution case sans unnecessary details:

2.1. P.Ws. 1 and 2 are the parents of the deceased, namely, Aaribha. P.W.3 is the brother of P.W.2. The second and the third accused are the parents of the first accused, who is the husband of the deceased. The third accused is the sister of P.W.1. The marriage of the deceased and the first respondent was celebrated on 05.05.1999. They got a female child. On 19.11.2001, the said Aaribha committed suicide by hanging. P.W.1 lodged a complaint with the respondent police stating that from the day one of the marriage the accused were perpetrating torture upon the deceased, that on 19.11.2011, when he was on duty in the college, he was called over phone by his wife and informed that his daughter died, that he came and saw the occurrence place and he believed that it is a murder and that the first accused might have committed murder of his daughter at the instigation of his parents.

2.2. On receipt of the complaint Ex. P.1, the Inspector of Police P.W.10, lodged the First Information Report Ex. P.7 in Crime No. 318 of 2001 u/s 174 Criminal Procedure Code and sent a copy to the Revenue Divisional Officer for inquest and the Deputy Superintendent of Police for investigation. The Revenue Divisional Officer P.W.6 received the First Information Report and proceeded to the scene of crime and held inquest over the dead body of the deceased. He examined the witnesses and Panchayatars and prepared Ex.P.6 in which he opined that there was no dowry demand by the accused but the deceased committed suicide due to the cruelty perpetrated upon her by the husband and mother in law. He gave Ex.P.5 a request to the medical officer for conducting autopsy. The doctor attached to the Government Hospital Kadayanallur conducted post-mortem on the corpse of the deceased and issued Ex.P8 Post-mortem Certificate with an opinion that the death was due to the pressure over the carotid sinus and the airway by the relatively thin but fairly strong nylon rope and the death should have occurred 18-20 hours prior to the autopsy.

2.3. P.W.9, the Deputy Superintendent of Police proceeded to the scene of crime examined the witnesses and recorded their statements. He prepared Observation Mahazar Ex.P.2 and two rough sketches Exs.P.9 and 10. He recovered nylon rope M.O.1 under the cover of seizure magazar. He received opinion from the Revenue Divisional Officer and found out that the death occurred due to cruelty made on the deceased and hence, he sent an alteration report Ex.P.11 altering the case into one Section 306 IPC. He arrested the accused on 22.11.2002 and sent them for judicial custody. He instructed the Inspector of Police to examine the witnesses. P.W.10, the Inspector of Police examined the remaining witnesses as well as the doctor. On completion of the investigation, he laid a charge sheet against the accused u/s 306 IPC.

The accused were put on trial and at the end of the trial, they were questioned u/s 313 Criminal Procedure Code as regards incriminating materials available against them in the prosecution evidence. They denied complicity to the offence. They did not examine any witness nor had they produced any documents.

Points for consideration:

(i) Whether the prosecution has proved the case u/s 306 IPC beyond reasonable doubt?

(ii) Whether the order of acquittal passed by the Court below has to be set aside by this Court?

Points: 1 and 2-

The learned Government Advocate (Crl.Side) would narrate various circumstances with reference to the occurrence and the earlier events available in the prosecution evidence. He submits that the oral evidence of P.Ws. 1 and 2 would clarify the fact that the deceased was subjected to mental cruelty by the respondents which has driven her to take the extreme step of committing suicide. It is also the contention that the Court below has not appreciated the evidence in a proper perspective and the order of acquittal is not sustainable and that the trial Court should have found the accused guilty u/s 306 IPC.

Contending on the other side of the coin, learned Senior Counsel appearing for the appellants would submit that the even though the chief and cross examinations of P.Ws. 1 to 3 are lengthy enough, they do not support the case of the prosecution, that they contain contradictions which are remarkable, that the evidence from the mouth of P.W. 1 would show that there was harmonious relationship between both sides, that on flimsy reasons, the deceased might have committed suicide and that the respondents are not at all responsible for her death nor had they perpetrated any cruelty upon the deceased.

P.W. 1 was working as Lecturer in Sadakabdullah Appa College in Palyamkottai. He is none other than the brother of the third accused. In the complaint, Ex.P.1, which emanated in this case on the first occasion, there is no whisper with regard to the alleged cruelty on the part of the respondents upon the deceased. He has mentioned that the accused were torturing the deceased. Excepting this, nothing is available in the complaint to show that the accused were giving torture to the deceased continuously and driving her to commit suicide. Even though the appellate Court need not reappraise and reassess his evidence on record in the appeal against acquittal, incidentally, the Court has to appreciate the evidence on record to find out whether the trial Court has reached a right conclusion.

It is in the evidence of P.W.1 that the first accused was abusing his daughter, that he scolded her as a deaf and blind, that there was illicit intimacy between the first accused and his brother''s wife, but he did not raise the issue earlier, that the first accused pulled the hand of wife of his brother and proclaimed in the public that he was keeping his brother''s wife and due to this, the deceased sustained much mental agony, that in an accident, the spectacles of the deceased was missing and the first accused abused her as blind, that he has gone to the house as many as ten times having grievance at the accused, that he used to speak with weeping, that at the time of obtaining birth certificate for the children, P.W.1 dropped his daughter in the house of the first accused with a delay of one day and hence, the third accused got irritated and abused her and that the first accused used to beat the deceased and the same was informed to him by his wife.

The evidence of P.Ws. 2 and 3 also are almost similar to that of P.W.1. In the cross-examination of P.W.1, his evidence in the chief examination was put him by each of every sentence to the effect that whether he told the allegations in the police investigation for which his answer was in the negative. So most of the allegations mentioned in the evidence deposed by P.W.1 in his deposition were not stated by him before the police, so also by P.Ws.2 and 3.

Mr. V. Kadirvelu, learned Senior Counsel would indicate certain circumstances which were available in the evidence of P.W.1 which would show that there was no love-lost between both the families. The second accused gave P.W.1 Rs. 50,000/- at the time of marriage. But, he returned back the amount to him. The second accused suffered hip ailment for which P.W.1 applied for one month leave and was in the hospital with the second at Tirunelveli and in Apollo Hospital in Chennai. He also stated that prior to the occurrence, the family of the P.W.1 had gone on a picnic with the child and also with the husband of the deceased to "Pallaru". The above said circumstances would show that there may not be any necessity for the accused to perpetrate cruelty upon the deceased. Further, it is stated that since they are close relatives, without any enmity, there may not be any cruelty. Had there been any cruelty, it would have been mentioned in the complaint, the learned Senior Counsel adds. When P.W.1 has stated in the complaint that it should be a murder, the investigation has shown that it is a suicide and hence, the gravity of the anger on the part of the P.W.1 at the accused may be seen and hence, the Court may reach a conclusion that his evidence is false.

P.W.4 is a neighbour. He did not support the prosecution. Hence, he was treated as hostile witness and examined cross by the prosecution. P.W.5 has attested the Observation Mahazar and seizure mahazar for recovery of M.O.1 nylon robe. The oral evidence and the other materials are available in this case were properly and fully scrutinsed by the trial Court in detail and it is found that the respondents are not guilty. Each and every event as mentioned by P.Ws.1 to 3 were scrutinised and subjected to careful analysis by the trial Court judge and she has passed a judgment of acquittal. The judgment challenged before this Court is based on the proper assessment of the materials, circumstances and evidence on record. In order to interfere with the judgment of acquittal, the appellate Court has to bear in mind certain principles as laid down by the Supreme Court. If the judgment of the Court below is suffering from manifest error or if any miscarriage of justice is caused to the parties by the acquittal, definitely, the appellate Court can disturb the findings. Further, if there were any compelling circumstances to dislodge the findings of the trial Court, then it can be interfered with.

In support of his contention, the learned Senior Counsel for the respondents would place much reliance upon the decision of the Hon''ble Supreme Court reported in Ram Kumar Vs. State of Haryana, , wherein it is observed as follows:-

In this connection, it may be pointed out that the powers of the High Court in an appeal from order of acquittal to reassess the evidence and reach its own conclusions under Sections 378 and 379 (sic 386) CrPC are as extensive as in any appeal against the order of conviction. But as a rule of prudence, it is desirable that the High Court should give proper weight and consideration to the view of the trial court with regard to the credibility of the witness, the presumption of innocence in favour of the accused, the right of accused to the benefit of any doubt and the slowness of appellate court in justifying a finding of fact arrived at by a judge who had the advantage of seeing the witness. No doubt it is settled law that if the main grounds on which the court below has based its order acquitting the accused, are reasonable and plausible, and the same cannot entirely and effectively be dislodged or demolished, the High Court should not disturb the order of acquittal. We shall, therefore, examine the evidence and the material on record to see whether the conclusions recorded by the trial court in acquitting the appellant are reasonable and plausible or the same are vitiated by some manifest illegality or the conclusions recorded by the trial court are such which could not have been possibly arrived at by any court acting reasonably and judiciously which may in other words be characterised as perverse.

12.2. In State of Rajasthan Vs. Raja Ram, , the Supreme Court has formulated the principles referring to the earlier judgments of the Apex Court. The relevant portion of the said judgment goes thus:

There is no embargo on the appellate court reviewing the evidence upon which an order of acquittal is based. Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the appellate court to reappreciate the evidence in a case where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused committed any offence or not. (See Bhagwan Singh v. State of M.P.) The principle to be followed by the appellate court considering the appeal against the judgment of acquittal is to interfere only when there are compelling and substantial reasons for doing so. If the impugned judgment is clearly unreasonable, it is a compelling reason for interference. These aspects were highlighted by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra, Ramesh Babulal Doshi v. State of Gujarat and Jaswant Singh v. State of Haryana.

12.3. In 2008 (16) SCC 256, Batcu Venkateshwarlu and others Vs. Public Prosecutor, Andhra Pradesh, the Apex Court has extracted the important portions of the earlier Supreme Court, which are as follows:

In Ramesh Babulal Doshi v. State of Gujarat this Court said: (SCC p. 229, para 7)

... While sitting in judgment over an acquittal the appellate court is first required to seek an answer to the question whether the findings of the trial court are palpably wrong, manifestly erroneous or demonstrably unsustainable. If the appellate court answers the above question in the negative the order of acquittal is not to be disturbed. Conversely, if the appellate court holds, for reasons to be recorded, that the order of acquittal cannot at all be sustained in view of any of the above infirmities it can then-and then only-reappraise the evidence to arrive at its own conclusions.

In Allarakha K. Mansuri v. State of Gujarat referring to earlier decisions, the Court stated: (SCC p. 63, para 7)

The paramount consideration of the court should be to avoid miscarriage of justice. A miscarriage of justice which may arise from the acquittal of guilty is no less than from the conviction of an innocent. In a case where the trial court has taken a view based upon conjectures and hypothesis and not on the legal evidence, a duty is cast upon the High Court to reappreciate the evidence in acquittal appeal for the purposes of ascertaining as to whether the accused has committed any offence or not. Probable view taken by the trial court which may not be disturbed in the appeal is such a view which is based upon legal and admissible evidence. Only because the accused has been acquitted by the trial court, cannot be made a basis to urge that the High Court under all circumstances should not disturb such a finding.

12.4. In Ganpat Vs. State of Haryana and Others, , the Supreme Court has set out ratio furnishing various grounds under which the appellate Court has to approach the order of acquittal, in which para 15(4) goes thus:

15.The following principles have to be kept in mind by the appellate Court while dealing with appeals, particularly, against an order of acquittal:

....

(iv) An order of acquittal is to be interfered with only when there are "compelling and substantial reasons" for doing so. If the order is "clearly unreasonable", it is a compelling reason for interference.

12.5. In (2011) 2 SCC (Crl) 1, M. Mohan Vs. State, the Hon''ble Supreme Court has held that the Court has to see whether there is mens rea on the part of the accused to commit the offence. The relevant portion stated in para:45 goes thus:-

The intention of the legislature and the ratio of the casesdecided by this Court are clear that in order to convict a personunder Section 306 IPC there has to be a clear mens rea to commit the offence. It also requires an active act or direct act which led thedeceased to commit suicide seeing no option and this act must have been intended to push the deceased into such a position that he/she committed suicide.

In view of the principles laid down in the above said decision of the Apex Court, it is to be borne in mind that when the appellate Court is dealing with the order of acquittal it should be careful in disturbing the findings unless the judgment of the Court below suffers from manifest error or if there was any miscarriage of justice either on factual or legal aspects. The innocence of the accused was strengthened by the order of acquittal and hence, the appellate Court has to be more careful in considering the reasons for acquital and there shall be compelling or substantial reasons for interference with the same.

This Court does not find any manifest error. No miscarriage of justice has caused by the order of acquittal and there is no compelling circumstances to disturb the conclusion reached by the Court below and hence, this appeal is liable to be dismissed. I answer the points as indicated above.

In view of the above, I am of the firm view that no valid grounds are made out to interfere with the judgment of the acquittal which deserves to be confirmed and it is accordingly confirmed.

In the result, the criminal revision petition is dismissed.