ORDER
M.R. Verma, J.
1. This is an appeal against the judgment dated 28-11-1996 passed by the learned Additional Sessions Judge, Handi whereby appellant-accused (hereinafter referred to as the ‘accused’) has been acquitted of the charge under Sections 302, 498-A and 201 of the Indian Penal Code, but has been convicted for the commission of an offence punishable under Section 306 of the Indian Penal Code and has been sentenced to rigorous imprisonment for 3 years and to pay fine in the sum of Rs. 2,000/-. In default of payment of fine, the accused has been directed to undergo further simple imprisonment for 6 months.
2. Briefly stated case of the prosecution is that Soma Devi (since deceased) married the accused about 2!/2 years before June, 1995, It was a love marriage and the accused, at that time, had another living wife, namely Nirmala Devi (PW 9). After the marriage, she has been residing with the accused. On June 26, 1995 a telephonic information was received in Police Station, Gohar from Constable Bhola Shanker of police post Janjhali that Soma Devi had committed suicide in suspicious circumstances. The information was recorded in the daily diary, a copy whereof is Ex. PO. Thereafter, A.S.I. Mast Ram (PW 17), Incharge, police post Janjhali, who was present at Police Station, Gohar, along with a photographer and other police officials went to Tipradhar, on the way, PW 1 Paras Ram, father of the de-ceased-Soma Devi, met him and made a statement Ex. PA under Section 154, Cr.P.C. which was recorded by A.S.I. Mast Ram, it has been stated in the said statement that after marriage, relations between Soma Devi (deceased) and accused remained cordial for some time and a son was borne out of the wedlock. However, after the accused was released on bail in a kidnapping case registered at Police Station, Gohar, he started harassing the deceased and used to goad her to bring money from her parents’ house and to transfer the land given to her by her father in his name. On this count accused had been often beating her with the result that Soma Devi would go to her parents’ house. Her father, Paras Ram, after giving her some money and clothes etc. would send her back. In the month of May, 1995 accused drew a sum of Rs. 8,000/- from the Post Office, which was due on Indira Vikas Patra in the name of the deceased by taking her to the Post Office under threat. The amount, so received, was spent by the accused. About 9 or 10 days before the occurrence, when Soma Devi had gone to her parents’ house, she informed her father that accused was asking her to get the parental land transferred or to ask for the price thereof from her father. Paras Ram told Soma Devi that she could inform the accused to get the land partitioned and have the land of his daughter’s share. Thereafter, Soma Devi returned to her matrimonial house on 19-6-1995. On 25-6-1995 at about 2.00 p.m. Lila Dhar, elder son of the accused and Nand lal came to the house of Paras Ram and informed him that Soma Devi was ill and he was called to the village Tipradhar. On further inquiries made in this regard, Liladhar informed PW 1 that Soma Devi had committed suicide by hanging. Thereafter PW 1 and others left for Tipradhar. For the night, they stayed in the house of Pradhan Das Raj and on the next day morning along with Pradhan they reached in the house of accused. Accused informed them that at about 7.00 a.m. Soma Devi left the house taking a Kilni and Rassi and went towards fields. When the accused went out to search for her, he found her hanging from a fallen tree in the nullah. Thinking that she might be alive, he untied the rope and kept Soma Devi in the nullah. then came back to the village and went to the spot again along with Tej Singh and Som Krishan (PW 14) and brought the dead body home. It has been further stated in the statement Ex. PA that the accused used to harass and beat deceased to secure money and transfer of the land and that as a consequence thereof Soma Devi had committed suicide. On the basis of the said statement, F.I.R. Ex. PV was recorded under Sections 304-B and 498-A of the Indian Penal Code in Police Station, Gohar, Marg reports Ex. PC and Ex. PD were prepared, and the postmortem of the body of Soma Devi was got conducted. Dr. Jiwa Nand (PW 4) and Dr. R. P. Tandan conducted the postmortem of dead body of Soma Devi and issued postmortem report Ex. PE. At the time of postmortem the following was observed by the doctors conducting the postmortem:-
1. Average built body of young female, wheatish complexion. Rigor mortis was in passing off stage. Lervee were present over mouth and nostrils, Bloodstained fluid coming out of mouth. She was wearing blackish half sleeve jacket, 2. Brownish shirt, Shitish chekdar Pajama with patches of clothes, Churis, Nathni and Anguthis were handed over to the mother of deceased.
Hypostasis was present over the back of neck whole back of chest and abdomen, on thighs mark on the posterior aspect, fixed, bluish purple in colour.
Right eye was closed and left eye was oedmatus lacerated with foul smelling dark coloured blood coming out of sockets.
Both lips, nostrils were blackened, tongue was pushed back. There were multiple small laceration on inner side of both lips, more on the upper side against central incisors. A black colour patch on the right side of face along angle of mouth 4 x 4″ in size of irregular shape.
Bleeding was present from mouth, nostrils and ears.
Gums were also showing multiple small laceration on both jaws.
Two abrasions with underlying bruise brown in colour were present in the face (right side), one over maxilla and other opposite right angle of mouth at the distance of 5.
A yellow dry, hard abrasion marks on neck on the right side extending to left side of neck. This mark was brownish on left side of neck, superficial, irregular in shape, 2 to 3″ wide at places extending to the back of left ear. The mark encircling the neck in front above thyroid cartilage but absent on the back.
After giving superficial incision on the mark the underline skin was normal. There was no injury to the underlying muscles and neck spructures-Superficial skin above and below the discoloured mark was normal. No antemortem injury to carotid artery or underlying neck structure. The mark present over neck was not corresponding to the legature material (Rope) produced by the police. The rope was without any knot, Hyoid bone was not fractured.
Abdomen Examination
Abdomen distendid, peritoneum normal, mouth and pharynx were full of naggotis and clotted blood, Tongue was also congested and dark brown,
Stomach was empty containing about 5 cc brownish fluid, Mucosal membrane of stomach showing may small petihcial haemorrhages in greater curvature.
Small and large intestines were full of gases. Liver was congested, brown in colour. Spleen was congested.
Both Kidneys were congested.
Bladder was empty.
External and Internal organs of generation normal.
Examination of Cranium and Spinal cord.
Hairs on scalp were soiled with dust particles and leaves and blood coming from mouth no injury to skull or vertebre.
Brain and its memembrances were congested.
Examination of Thorax
Walls and cartilages were normal. pleaurae were congested.
Larynx and trachea congested. Trachea contained dark coloured particles with blood clots.
Right lung congested oedematous and exude bloody froth on cut section.
Left lung was congested, oedematous and exudes blood froth on cut section.
Pericardium congested, Heart full of fluid blood, large vessels etc. normal. No injury to any bone or joint.
3. According to the opinion given by the doctors conducting the postmortem the deceased died due to asphyxia. Final opinion was, however, reserved till the receipt of the report of chemical analyst. The viscera preserved by them and the wearing apparels of the deceased found on her person at the time of postmortem were sent to the State Forensic Science Laboratory, Shimla. However, as per report Ex. P-A/4 received from the said laboratory, no poison or diazopam was detected in the viscera. The final opinion given by them after receipt and perusal of the report received from the State Forensic Science Laboratory is Ex. P.-Z/4. They have opined that deceased died due to asphyxia due to smothering. During the course of investigation rope lying near the dead body of Soma Devi was taken in possession by the police vide memo Ex. PB. On interrogation, accused made disclosure statement about potassium permagnate Ex. PF and got one plastic phial containing potassium permagnate recovered vide Ex. PH. He made another disclosure statement Ex. PG about the diazopam tablets in his possession and pursuant to the said statement 4 diazopam tablets recovered from his bag vide memo Ex. PJ. The wearing apparels, the accused was allegedly wearing at the time of occurrence, were also taken in possession by the police vide memo Ex. PL. On production by the accused, shoes and clothes of the deceased were also taken in possession by the police vide memo Ex. PN. It was also found during the course of investigation that Nirmala Devi, first wife of the accused and her minor children had filed a petition under Section 125 Cr. P.C. against the accused claiming maintenance therein which was awarded by the learned Judicial Magistrate 1st Class, Karsog vide his order dated 23-4-1994. Accused preferred a revision petition against the said order wherein parties entered into compromise in the Court of learned Additional Sessions Judge, Mandi on 19-51995. As per this compromise accused had agreed to keep his wife Nirmala Devi and minor children Maina Devi, Om Chand and Tula Wati in his house, vide his statement Ex. PR. A certificate Ex. P-9 regarding registration of the accused as a practitioner in Ayurveda and Unani system of treatment was also taken in possession by the police vide memo Ex. PM. The wearing apparels and other clothes of Soma Devi were taken in possession by the police during the course of investigation and blood sample of Soma Devi was also sent to the State Forensic Science Laboratory and as per report Ex. P-Z/5 received from the said laboratory, blood sample was found to be human blood and bloodstains were found on shirt and jacket. No blood was detected on other articles. It appears that the group of human blood so found could not be ascertained. Investigation led the Investigating agency to form an opinion that this was a case under Sections 302, 201 and 498-A of the Indian Penal Code. Hence the officer-in-charge, Police Station, Gohar on completion of investigation submitted a charge sheet against the accused.
4. The accused came to be tried by the learned Additional Sessions Judge, Mandi on a charge under Sections 302, 498-A and 201 of the Indian Penal Code.
5. To prove the charge against the accused the prosecution examined as many as 19 witnesses.
6. The accused, in his statement under Section 313 Cr. P.C, denied the incriminating evidence against him and further stated that police was having enimical attitude towards him because of the alleged kidnapping case of his uncle in which he was released after two months and thereafter the present false case has been framed against him. Therefore, he claims to be innocent. The learned Additional Sessions Judge finally acquitted the accused of the charge against him, but convicted and sentenced the accused under Section 306 I.P.C., as aforesaid, hence the present appeal.
7. I have heard the learned counsel for the accused-appellant and the learned Additional Advocate General for the State and have also gone through the records.
8. It was contended by the learned counsel for the appellant that the charge against the accused-appellant as per the charge sheet submitted against him was framed by the learned Additional Sessions Judge under Sections 302, 498-A and 201 IPC and the accused was not found guilty of the commission of any of these offences. Once the charge under Sections 498-A IPC about the alleged subjecting of Soma Devi to cruelty by the accused had failed, the accused could not have been convicted and sentenced under Section 306 IPC. In support of his contention, the learned counsel has relied on E. Balakrishnama Naidu v. State of Andhra Pradesh 1992 Cri LJ 2328 : AIR 1992 SC 1581.
9. On the other hand, the learned Addl. Advocate General has contended that in the facts and circumstances of the case, and on the basis of the presumption under Section 113-A of the Indian Evidence Act, 1972, the accused has been rightly convicted under Section 306 IPC, notwithstanding the fact that the charge was initially framed under Section 302 IPC. In support of his contention, the learned Addl. Advocate General relied on Lakhjit Singh v. State of Punjab 1994 Supp (1) SCC 173 : 1993 AIR SCW 2938.
10. It may be pointed out at the very outset that neither the State has preferred any appeal against the acquittal of the accused for the alleged commission of offences punishable under Sections 302, 498-A and 201- IPC nor any affected party has preferred any revision against such acquittal. In these circumstances, the acquittal part of the case has to be taken as it is. While dealing with the head of charge under Section 498-A IPC, the learned Additional Sessions Judge held as under:
The case of the prosecution is also that accused subjected his wife to cruelty and mental torture. However, there is no direct evidence or circumstantial evidence to prove that accused subjected his wife Soma Devi to cruelty by giving her beatings. No doubt, PW-1 Paras Ram and PW-2 Jyoti Parkash have deposed that Soma Devi had been telling them that the accused used to give beatings to her, but the matter regarding giving beatings was never reported to the police nor any such report had been made to the Pradhan or Panch of the Gram Panchayat of the area nor any neighbourers of Soma Devi have been examined to prove that any such beatings were given by the accused or she told about the same to the ladies in the village where she was residing or any neighbourers heard her cries regarding giving of beatings by accused Khem Singh and, therefore, I am of the opinion that the prosecution has failed to prove this point from direct or circumstantial evidence.
11. It is evident from the above quoted portion of the impugned judgement that the prosecution has failed to prove that the accused subjected the deceased to cruelty by giving beatings and mentally torturing her and it is on the basis of this conclusion that the accused was acquitted of the head of charge under Section 498-A IPC. If the alleged beatings and torture were not the causes which led the deceased to commit suicide, then it has to be found from the records as to what act or omission on the part of the accused constituted the abetment which led the deceased to commit suicide. In this regard, it is expedient to refer to the relevant part of the impugned judgement wherein the learned Addl. Sessions Judge held that the suicide committed by Soma Devi was abetted by the accused which reads as follows :
In the instant case, as per the evidence on record, Smt. Soma Devi contracted love marriage with Khem Singh accused at a time when he had strained relations with his wife Nirmala, as per statement of Nirmala Devi PW-9, who had filed an application for maintenance under Section 125 Cr. P.C. against accused Khem Singh. That application was compromised on 19-5-1995 and as per statements Ex. PQ and Ex. PR and order of the Court Ex. PS, the matter was compromised and Khem Singh agreed to take back Nirmala Devi and her children to his house and to send Soma Devi to her parents house. This statement by Khem Singh accused in the Court and the compromise arrived at in the Court is not disputed and is admitted even by the accused to have taken place with his consent. Therefore, the accused was bound to send Soma Devi to house of her parents to enable Nirmala Devi and her children to come to his house and this was the abetment on the part of her husband Khem Singh to force Soma Devi to commit suicide. It has come in the evidence of prosecution that the log was about three feet in diameter with which Smt. Soma Devi is alleged to have committed suicide. PW-11 Dr. Vijay Singh Jamwal stated that he visited the spot and complete hanging leading to death was not possible from that log with rope in the neck, but partial hanging was possible on that spot with that log and in the cross-examination, he has clearly stated that partial hanging can also cause death. In addition, PW-1 and PW-2 S/Sh. Paras Ram and Jyoti Parkash have stated that Soma Devi had been telling them that accused was giving her beatings and maltreating her when she came to their house on 14-6-1995 and she was sent back on 19-6-1995 and this date 14-6-1995 was after compromise arrived at with Nirmala by accused Khem Singh. This evidence on record clearly establishes that Soma Devi committed suicide by hanging, but the accused by his overt and covert acts, has abetted in the commission of suicide by Soma Devi deceased.
12. In the above quoted portion of the judgment, learned Additional Sessions Judge has observed that the dispute between the accused and his wife Nirmala Devi was compromised and accused agreed to take back Nirmala Devi and her children to his house and to send Soma Devi to her parents house. These observations, on the basis of the material on record, are correct only to the extent that the dispute regarding payment of maintenance between Nirmala Devi and Khem Singh was compromised inter se them whereby accused agreed to take Nirmala Devi and her children to his house. However, the observations that the accused agreed to send Soma Devi to her parents house are without any basis and evidence on record. A perusal of the statement of the accused Ex. PR, whereby he agreed to the compromise, does not contain the condition that he would send the deceased to her parents house. Thus, this observation of the learned Additional Sessions Judge is without any basis and is not one of the conditions of the compromise entered into between the deceased and his other wife Nirmala Devi. Nirmala Devi admittedly was married to the accused prior to the love marriage between him and the deceased and the deceased is not shown to be unaware of the marriage between the accused and Nirmala Devi. Thus, she entered into a love marriage with the accused while being aware of the fact that Nirmala Devi is the married wife of the accused and had three children out of the wedlock. The accused was and is legally bound to maintain Nirmala Devi and the children born to her from the loins of the accused. Against this background, if accused had agreed to take Nirmala Devi and her children to his house and to maintain them properly and not to beat her, he only agreed to abide by a legal obligation vide statement Ex. PR. Therefore, this act on the part of the accused cannot be treated as abetment to the commission of suicide by the deceased. The observations of the learned Additional Sessions Judge forming part of the above quoted portion of the judgment that the deceased had been telling PW 1 Paras Ram and PW 2 Jyoti Parkash that the accused was giving her beatings and maltreating her and that this evidence on record clearly establishes that Soma Devi committed suicide by hanging but the accused by his overt and covert acts has abetted in the commission of suicide by Soma Devi deceased, are contradictory of the reasons given by the learned Additional Sessions Judge for acquitting the accused of the head of charge under Section 498-A, IPC. Apart from what had been alleged by the prosecution and had been disbelieved by the learned Additional Sessions Judge, there is nothing on record which may show any overt and covert acts on the part of the accused which may be treated as abetment in the commission of suicide by the deceased. Therefore, the conviction of and sentence awarded to the accused by the learned Additional Sessions Judge under Section 306, IPC for which the accused was neither charge-sheeted nor charge was framed against him, cannot be sustained.
13. In Lakhjit Singh’s case 1993 AIR SCW 2938 (supra) three accused persons were convicted by the trial Court and in appeal preferred by them, one was acquitted but the convictions of two others including Lakhjit Singh were confirmed. In the Criminal Appeal preferred by the convicts whose conviction was maintained by the High Court, it was found that there was no evidence to hold the appellants guilty of offence punishable under Section 302, IPC. However, on consideration of the further material on record and in view of the provisions of Section 113-A of the Evidence Act, the Hon’ble Supreme Court held as under :
The facts and circumstances of the case have been put forward against the accused under Section 313, Cr.P.C. and when there was a demand for dowry it cannot be said that the accused are prejudiced because the cross-examination of the witnesses, as well as the answers given under Section 313 of the Cr.P.C. would show that they had enough of notice of the allegations which attract Section 306, Indian Penal Code also. That apart, what all Section 113-A of the Evidence Act says is that the Court, having regard to the other circumstances of the case, can presume. Therefore, the circumstances in this case would show that the accused have been demanding dowry even within a short period after the marriage and the deceased also had to live in her parent’s house and it is the husband who went and brought her back. The deceased followed him and unfortunately, the incident has taken place. Since there is no direct evidence regarding administration of poison to the deceased as such, the only course left is to hold that the prosecution has proved only suicide. In these, circumstances, Section 306 is attracted. For these reasons, the conviction of the appellants under Section 302 and sentence of imprisonment for life are set aside. Instead, they are convicted under Section 306, Indian Penal Code and each of them is sentenced to undergo rigorous imprisonment for 5 years and sentence of fine of Rupees 2000 with default clause are confirmed.
14. In the case supra, there was no charge against the accused under Section 498-A, IPC. However, there was evidence about the demand of dowry etc. by the accused and it was this part of evidence which was believed by the Hon’ble Supreme Court to convert the conviction and sentence from Section 302 to one under Section 306, IPC. In the instant case, the accused had already been tried and acquitted of the head of charge under Section 498-A, IPC on the ground that the alleged beatings and torture as alleged by the prosecution, were not proved. Neither there is any appeal by the State nor any revision by any affected party, therefore, the acquittal of the accused for the alleged commission of offence under Section 498-A, IPC has become final between the parties and cannot be interfered with in this appeal. The additional ground of abetment considered by the learned Addl. Sessions Judge to hold that accused had abetted the commission of suicide by the deceased, has already been found to be unsustainable. Therefore, the ratio as laid down in the case supra is not applicable to the facts and circumstances of the present case and does not help the respondent in any manner.
15. In E. Balakrishnama Naidu’s case 1992 Cri LJ 2328 (SC) (supra), it was held as under :
Mr. A.V. Rangam, learned counsel appearing on behalf of the appellant, E. Balakrishnama Naidu strenuously contended that the conviction under Section 498-A as recorded by the High Court is illegal and cannot be sustained since this appellant was acquitted of the offence under Section 498-A, IPC by the trial Court as against which there is no appeal preferred by the State and that the finding given by the trial Court has become final. Learned counsel for the State although has not disputed the legal proposition raised by Mr. A.V. Rangam, yet contended that the High Court was not justified in setting aside the conviction under Section 306, I.P.C. as the conviction on that provision of law made by the trial Court was based on sound reasoning,
11. The High Court for the elaborate discussions made in its judgment has found on the facts of the case that there is no evidence for recording the conviction under Section 306, IPC. The conclusion arrived at by the High Court reads as follows :
Though the appellant harassed the deceased for not begetting the children and caused her mental agony, there is no evidence that just before her death there was harassment by the accused to the deceased. In the absence of such an evidence showing that due to that harassment the deceased committed suicide, it cannot be said that the accused had abetted the death of the deceased. However, in this case, the evidence of PWs 2 and 9 clearly established that the appellant had harassed the deceased for not begetting the children and abused her. Therefore, the accused is found guilty under Section 498A-IPC. Therefore, the conviction of A1 under Section 306, IPC is set aside.
12. For reaching the above conclusion, the High Court has also relied upon a piece of the medical evidence which is to the effect that no definite cause of death could be found as the body of the deceased was in advanced stage of purification and that there is no direct evidence to show that the death was caused by the appellant/accused,
13. After hearing learned counsel for both the parties, we feel that the judgment of the High Court convicting the appellant, E. Balakrishnama Naidu under Section 498-A cannot be sustained both legally as well as factually and, therefore, the appeal filed by E. Balakrishnama Naidu has to be allowed.
16. What can be said on the basis of the above is that once the accused is acquitted of a charge under Section 498-A IPC, the requisite ingredients whereof are such which may impel a woman to cause physical or mental injury to herself including suicide, the conviction under Section 306 IPC, in the absence of evidence of any other type of abetment as in this case, will not be sustainable in law or factually.
17. The learned Addl. Advocate General has strenuously tried to convince that in fact the accused is proved to have committed an offence punishable under Section 302, IPC and deserved to be convicted and sentenced for the commission of the said offence. As already stated hereinabove, the trial Court had tried the accused on the charge under Sections 302, 498-A and 201, IPC of which he had been acquitted. The State had not preferred any appeal against such acquittal nor any interested party has come up in revision. In the absence of any appeal or revision against the acquittal order, this Court examined the legality of the acquittal order which is not under challenge before it.
18. It was contended by the learned Addl. Advocate General that the Court, in exercise of its suo motu powers of revision can redress the wrong committed by the learned Addl. Sessions Judge. May be that the learned trial Judge has assigned weak reasons for acquittal of the accused or a different view, on the basis of the material on record may be possible, but suo motu revisional powers are exercised by the Court of its own accord and not on the prayer made by a party, having a right of appeal.
19. Section 378, Cr.P.C. provides for appeal in case of acquittal by the State. Sub-section (4) of Section 401 of Cr.P.C. provides that where under the Code of Criminal Procedure, an appeal lies and no appeal is brought, no proceedings by way of revision shall be entertained at the instance of the party who could have appealed. In the instant case, the State had a right to prefer an appeal against the judgment acquitting the accused of the charge under Sections 302, 498-A and 201, IPC but it was not preferred. Therefore, on the prayer of the State, to exercise revisional jurisdiction in the matter, will be contrary to law and will virtually amount to altering an appeal against conviction into an appeal against acquittal.
20. The impugned judgment was passed by the learned trial Court on 28-11-1996. The appeal was admitted for hearing on 27-12-1996. The Court at no point of time, decided to exercise its powers of suo motu revision in the matter till the request came from the learned Addl. Advocate General.
21. For the reasons stated here in above, there is no scope for exercising suo motu revisional powers by this Court in the matter.
22. As a result, this appeal is allowed and the conviction and sentence imposed on the accused under Section 306, IPC are set aside. Fine, if recovered, be refunded to the accused.