Hon''ble Sudhanshu Dhulia, J.@mdashThis Criminal Appeal arises out of the judgment and order dated 22.12.1999, passed by the learned Sessions Judge, Pithoragarh in Sessions Trial No. 34 of 1998 State Vs. Indra Singh and Others, whereby accused Indra Singh (the present appellant before this Court) has been convicted, and sentenced u/s 302 of Indian Penal Code, 1860 (for short, I.P.C.) for life imprisonment.
2. Brief case of the prosecution before the trial court was that complainant (P.W.1 before the trial court) Dan Singh lodged an F.I.R. at Police Station - Jhulaghat, Pithoragarh on 4.5.1998, stating that about one and a half years back, his daughter Leela Devi was married to Indra Singh, S/o Shiv Singh, resident of Village Katiyani, Thana Jhulaghat, Pithoragarh, as per Hindu rites and ceremonies. Ever since their marriage, his daughter was being harassed by her husband, her mother-in-law and her sister-in-law regarding dowry, and whenever his daughter used to come to her maika, she used to complain harassment and torture by her in-laws. He has further stated that as per his financial conditions, he gave money, etc. to his in-laws at the marriage of his daughter, yet the harassment and torturing of her daughter in the hands of his in-laws and son-in-law, continued. On 2.5.1998 at about evening, he was informed that his daughter has hanged herself to death, but in order to appreciate the correct situation, he had sent his brother Raghubir Singh and other persons to Village Katiyani. His brother reported back saying that his daughter was lying dead and there were marks of injuries on her body and her in-laws have falsely stated that Leela Devi hanged herself, in fact, she has been murdered! The complainant further stated that he suspected that the husband, mother-in-law and sister-in-law of his daughter together committed the murder of his daughter. The inquest report itself was prepared by Hayat Singh Sajwan, Sub-Inspector on 2.5.1998 at 7.30 P.M. Autopsy was conducted on the body of deceased. As per the post-mortem report, there were as many as seven injuries on the body of the deceased, which are as follows :-
1. Contusion with haematoma over forehead and left side of face and scalp. Size 10 x 6 cm Blood clots present on cutting.
2. Contusion with haematoma over front of chest to left shoulder size 11 x 5 cm blood clots present on cutting.
3. Contusion with haematoma on right ingrined region to right iliac region and abdomen size 8 x 3 cm Blood clots present on cutting.
4. Contusion with haematoma over mid of left thigh anteriorly 12 x 8 cm Blood clots present on cutting.
5. Contusion with haematoma over left calf region size 8 x 6 cm Blood clots present in cutting.
6. Contusion over left arm and forearm size 6 x 3 and 4 x 2 cm Blood clots present in cutting.
7. III defined ligature mark under the Mangal Sutra.
Apart from this, the internal examination of the post-mortem also discloses the following injuries :-
1. Under injury no. 1, haematoma was present.
2. On back side chest in the internal skin haematoma was present.
3. In both the lungs cherry red colour blood for about 100 ml was found.
3. The internal examination shows that at least injuries no. 2 and 3 had haematoma. In other words, these injuries were not superficial in nature, though apparently they were only contusions. Appearance of haematoma inside the body, under these injuries would mean that these injuries have been caused by severe blows on the body of the deceased. The nature of ante mortem injuries in any case clearly reveals that the deceased was subjected to beating before her death. The prosecution story is further corroborated with the statement given by P.W.1 Dan Singh before the court. P.W.1 being the father of the deceased has supported the story of the prosecution in total and stated that the deceased was married to appellant Indra Singh only one and a half years prior to her death. In close proximity before her death, there have been demand of dowry, harassment and beating. P.W.1 has stated before the court that mother-in-law and sister-in-law of the deceased never gave her sufficient food to eat or enough clothes to wear and she always used to complain that she is being tortured by her in-laws and repeatedly the demand of dowry was being made. Only after six months of her marriage, Leela Devi came to her maika to attend a marriage and she complained against her mother-in-law and sister-in-law having harassed and tortured her regarding demand of dowry, and therefore, when the daughter of the complainant was going back to her sasural, he (complainant) gave her Rs. 1000/-. Thereafter, P.W.1 in his examination-in-chief has further stated that later his daughter came with the accused-appellant her husband Indra Singh and she stated that appellant Indra Singh wants her to get Rs. 10,000/- from her father. On the same day, accused-appellant Indra Singh came to their house under intoxication of liquor when he had beaten Leela Devi in front of P.W.1 and P.W.2, i.e. father and mother of the deceased. Next morning he took Leela Devi to his house stating loudly that Leela Devi will never return to her maika again. After one and a half months of this incident, Leela Devi was murdered in her sasural. P.W.1 further stated, as in his F.I.R., that on 2.5.1998, someone came from Village Katiyani, Pithoragarh and informed him that Leela Devi committed suicide, and thereafter, he sent his brother and other persons to Village Katiyani and when they went there, they found that there were injuries on the body of Leela Devi, etc. P.W.2 Smt. Parwati Devi is the mother of the deceased Leela Devi. She, more or less, repeated the same thing, as stated by her husband as P.W.1, particularly, regarding demand of dowry and harassment of her daughter. Even P.W.2 in her statement narrated the same thing as her husband P.W.1 that Indra Singh had come to her house under intoxication of liquor and had beaten her daughter in front of them. P.W.3 Raghubir Singh is the person who was sent to the sasural of the deceased only to gauge the correct state of affairs. P.W.3 stated that there were injuries on the body of the deceased which showed that she has not committed suicide but has been murdered. P.W.4 is Dr. B.M.S. Tolia, who conducted autopsy on the body of the deceased on 4.5.1998. According to him, the body by that time had partially decomposed and was in the process of decomposition, and as per his medical opinion, death had taken place 3 to 5 days prior to post-mortem examination. He narrated the ante-mortem injuries on the dead body of deceased and stated that since the body had decomposed, the correct reason for her death cannot be ascertained. However, injury no. 7 which is the ligature mark on the body of the deceased under the "mangal sutra" suggests that it is a case of "strangulation" and not of hanging. Be that as it may, it is also true, that there is no clear medical opinion on this aspect.
4. The trial court had framed the following charges :-
First that sometimes between 1.5.1998 and 2.5.1998 in village Katiyani, P.S. Jhulaghat, Distt. Pithoragarh, the death of Smt. Leela Devi was caused by bodily injuries and in otherwise than under normal circumstances within seven years of her marriage and soon before her death she was subjected by you all to cruelty and harassment for and in connection with demand for dowry and you thereby committed an offence of dowry death punishable u/s 304 B, IPC and within my cognizance.
Secondly you Inder Singh, being husband of Smt. Leela Devi the deceased; Smt. Manju Devi, being mother in law and Km. Rewati Devi being sister-in-law of the deceased Leela Devi subjected her to cruelty in connection with and for dowry demand and thereby committed an offence punishable u/s 498A, I.P.C. and within my cognizance.
That you on 1.5.1998 at about 5-6 p.m. in village Katiyani, P.S. Jhulaghat, Distt. Pithoragarh have committed the murder of Smt. Leela Devi, to wit by intentionally and knowingly causing her death and as such you have committed an offence punishable u/s 302, I.P.C. and within the cognizance of this Court of Sessions.
5. Initially charges were framed against all the accused u/s 498A and Section 304B I.P.C., but later an alternative charge u/s 221 was also framed only against present accused appellant Indra Singh i.e. the husband u/s 302 I.P.C. Since all the accused denied the charges, they were subjected to the trial.
6. The trial court after appreciating the evidence advanced before it, came to the conclusion that charges u/s 498A and 304B I.P.C. against none of the accused are made out and hence they were acquitted of the same, but charge u/s 302 I.P.C. stands proved against the present accused-appellant and hence he was convicted and sentenced u/s 302 I.P.C. In short, the trial court has convicted and sentenced only one of the three accused i.e. husband of the deceased, that too, not on charges of Section 498A and 304B I.P.C. but on Section 302 I.P.C. holding that it is not a case of dowry death, but of murder.
7. We fail to agree with the manner in which the evidence has been appreciated by the trial court. Undoubtedly, for the appellant, an alternative charge was also framed u/s 302 I.P.C., however, we cannot lose sight of the fact that this is a case of circumstantial evidence. There is no eye-witness to the incident. In case of a circumstantial evidence the entire chain must be completed and all the evidence must draw to one and only conclusion that it is the accused which has caused the death. This, however, cannot be done on the basis of the evidence before the trial court, therefore he cannot be convicted u/s 302 I.P.C.
8. On the other hand, there is a sufficient of evidence under 304 B I.P.C. In close proximity to the date of fatal incident i.e. a few months before that both P.W.1 Dan Singh and P.W.2 Parwati Devi have given their evidence before the trial court that there was a demand of dowry and the accused appellant had beaten their daughter in front of them in their own house. It is an admitted fact that marriage had taken effect only one and a half years prior to the death of the deceased. Moreover, Section 304 B I.P.C. casts a presumption in case of an unnatural death of a lady within seven years of her marriage, where there were complaints of demand of dowry and harassment, such a death is then a "dowry death". We fail to understand as to how the trial court has acquitted the present appellant of the charge on the teeth of these voluminous evidence pointing to the offence under 304B I.P.C.
9. At this stage, however, an interesting proposition of law was made by the counsel for the appellant Sri J.S. Virk. Sri Virk submits that this Court cannot convict and sentence the appellant u/s 304B I.P.C., as he has already been acquitted by the Sessions Court for an offence u/s 304B I.P.C. In other words, the counsel contends that it is beyond the scope of powers of the High Court to "alter the findings" of acquittal into that of conviction in an appeal against conviction (under Section 374(2) Cr.P.C.).
10. This seemingly attractive proposition of law must, therefore, be examined and dealt with by this Court.
11. The powers of the appellate court have been given u/s 386 Cr.P.C. for a ready reference, Section 386 Cr.P.C. is being quoted as below :-
386. Powers of the Appellate Court. - After perusing such record and hearing the appellant or his pleader, if he appears, and the Public Prosecutor, if he appears, and in case of an appeal u/s 377 or section 378, the accused, if he appears, the Appellate Court may, if it considers that there is no sufficient ground for interfering, dismiss the appeal, or may -
(a) in an appeal from an order of acquittal, reverse such order and direct that further inquiry be made, or that the accused be retried or committed for trial, as the case may be, or find him guilty and pass sentence on him according to law :
(b) in an appeal from a conviction -
(i) reverse the finding and sentence and acquit or discharge the accused, or order him to be re-tried by a Court of competent jurisdiction subordinate to such Appellate Court or committed for trial, or
(ii) after the finding, maintaining the sentence, or
(iii) with or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence, but not so as to enhance the same;
(c) in an appeal for enhancement of sentence-
(i) reverse the finding and sentence and sentence and acquit or discharge the accused or order him to be re-tried by a Court competent, so as to enhance the same, or
(ii) alter the finding maintaining the sentence, or
(iii) with or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence, so as to enhance or reduce the same;
(d) in appeal from any other order, alter or reverse such order;
(e) make any amendment or any consequential or incidental order that may be just or proper :-
Provided that the sentence shall not be enhanced unless the accused has had an opportunity of showing cause against such enhancement:
Provided further that the Appellate Court shall not inflict greater punishment for the offence which in its opinion the accused has committed, than might have been inflicted for that offence by the Court passing the order or sentence under appeal.
12. Now presently we are dealing with an appeal from conviction, which would fall u/s 386(b) Cr.P.C. and therefore, the appellate court has powers, inter alia, to "alter the finding". Now the phrase "alter the finding" can have a restricted meaning or it can have a broad and comprehensive meaning. The High Courts in India from time to time in the past have adopted both a restrictive as well as a broad and comprehensive meaning to this provision of law. The matter though now stands settled by a seminal Full Bench judgment rendered by the majority judges of the Allahabad High Court in
13. Suffice would it be to state, at this stage, that if we would to adopt rather restrictive meaning of phrase "alter the finding", it would lead to rather absurd consequence at times. Moreover, unlike in section 401 (which are revisional powers of the High Courts) where there is a specific prohibition for the High Courts'' power in revision where u/s 401(3), the High Court cannot convert a "finding of acquittal" into one of conviction, in the appellate powers of the High Courts u/s 386 Cr.P.C. there is no such explicit restriction. In the absence of such a restriction, no such restriction can be read into Section 386. However, as it has already been referred above, the opinion this Court is expressing on this subject has found expression by the majority judgment of Full Bench of Allahabad High Court, stated above.
14. In the present case, the learned counsel for the appellant would argue that admittedly no appeal has been filed against acquittal by the State or even by the complainant, for that matter. Since there is no such appeal against acquittal, on what would the Court be altering a sentence of acquittal to that of a conviction! This argument, however, is quite misplaced, as it confuses between the power of an authority or a person to file an appeal with the power of the High Court to give a particular finding or sentence. The contention that the omission to file an appeal against acquittal totally immunises an order of acquittal from any attack from the appellate court, even when the case is before the High Court in appeal seems rather far fetched. This Court in its appellate powers has got powers to "alter the findings". The only question is, whether it has got powers to "alter the findings of acquittal" to that of conviction. The answer to this question has been explained by the majority judgment of Chief Justice Iqbal Ahmad in the Full Bench Judgment, referred above. Broadly, it has been said that the correct inference, which has to be drawn here is that there is no such restriction for changing a "finding of acquittal" to that of "conviction", u/s 386, as it is there in Section 401. In case, the Legislature in its intention wanted to limit the powers of the appellate court as well, as they intended to do in case of the revisional court, they would have very well put a similar restrictions in Section 386 Cr.P.C., as well. The majority judgment of Full Bench of Allahabad (supra) says as follows:
... As the power to "alter the finding" is not circumscribed by any words of limitation and as there is nothing in cl. (b) of S. 423* to prohibit the appellate Court from going behind a finding of acquittal, the answer to the question just noted must, in my opinion, be in the affirmative. The Legislature has, by sub-s. (4) of S. 439**, debarred the High Court from converting "a finding of acquittal into one of conviction". If the Legislature had intended to impose a similar restriction on the power of an appellate Court while dealing with an appeal from conviction, nothing would have been easier than to enact a similar provision in sub-cl. (2) of cl. (b) of S. 423. The absence of such a provision in that sub-clause is, to my mind, proof positive of the fact that, subject to the other provisions of the Code, the Legislature did intend to empower an appellate Court to convert a finding of acquittal into one of conviction even though the finding of acquittal had not been appealed against.
15. Moreover, let us also examine the practical side of the matter. The Court u/s 221 has got powers to frame charges in alternative, and in many cases this procedure is adopted. While framing the charges, the Court does not have any doubt in its mind about the factual aspect of the matter, it only has a doubt as to the legality, in other words, which provision of law would be applicable on these given set of facts. Framing of alternative charges is an accepted process in criminal law. In the present case, charges were framed against the accused u/s 304B/498A I.P.C. and in the alternative u/s 302 I.P.C. as well. The trial court has convicted and sentenced the present appellant u/s 302 I.P.C. and has acquitted him on Sections 304B/498A I.P.C. During hearing of the appeal before this Court, we have come to the conclusion that the accused appellant was actually guilty u/s 304B I.P.C., but not u/s 302 I.P.C. However, according to the extremely restricted interpretation sought to be given to Section 386 Cr.P.C. by the learned counsel for the accused appellant, and more particularly, to the phrase "alter the findings", this Court would be powerless to convict the appellant u/s 304B I.P.C., since he already stands acquitted of the same offences! This interpretation of Section 386 Cr.P.C. is clearly misplaced only on a plain reading of Section 386 Cr.P.C., which is clear and unambiguous and also in the absence of any binding authority on the point given to us by the accused appellant. We, therefore, decline to accept this clearly erroneous interpretation of Section 386 Cr.P.C. Section 386 Cr.P.C. gives the power to the appellate court to "alter the finding" of conviction under one Section and substitute it by a finding of conviction under another Section, irrespective of the fact that the Section under which the appellant is now being convicted, he was acquitted by the trial court.
16. There is another aspect to this matter -what has ultimately happened to the appellant in this case! What has ultimately happened to the appellant in this appeal is that in effect he has actually been convicted and sentenced of a lesser offence than on what he was convicted and sentenced by the trial court. This court has ultimately not enhanced the conviction or the sentence awarded to the accused appellant by the trial court. Clearly, had this been done, this would have been in violation of statutory provisions contained in Section 386 Cr.P.C., whereby it has been specifically laid down that the appellate court cannot enhance the sentence. Therefore, in view of the clear and unambiguous provision u/s 386 Cr.P.C., we find no strength in the submission of the accused appellant made above, for the primary reason that there is no such specific restriction, as is being made out u/s 386 Cr.P.C., nor it seems to be an intention of the Legislature. Moreover, any other interpretation to this aspect than what has been made by this Court above, would lead to anomalous situations, which could never have been the intention of the Legislature. Before parting, we must note that the earliest decision on the subject was by the Calcutta High Court in Queen-Empress V. Jabanullah (96) 23 Cal. 975. While interpreting the old provision relating to the powers on appeal of the High Court, which was Section 423 Cr.P.C., as it has already been noticed above, Justice Banerjee noted as below :-
Section 423, cl. (b), has no such restriction imposed upon it There is, under that clause, only one restriction to the power of the appellate Court on an appeal from a conviction, and that is, that it cannot enhance the sentence. It is possible to imagine cases in which this restriction may stand in the way of the appellate Court''s altering the finding. Thus, if an accused person is charged with having murdered A, and also with having caused grievous hurt to him, and is acquitted of the former offence but convicted of the latter and sentenced to seven years'' rigorous imprisonment by the first Court, the appellate Court cannot, on the appeal of the accused, alter the finding into one of guilty of murder, because, as it cannot enhance the sentence, the result will be that a person convicted of murder, for which the only punishment is either death or transportation for life, will be punished merely with imprisonment for seven years - a sentence which is not in accordance with law. That, however, is not the case here, and so we need not consider it further. But in a case like this, in which no such difficulty arises, I think the appellate Court can, in an appeal from a conviction, alter the finding of the lower Court and find the appellant guilty of any offence of which he may have been acquitted by that Court.
This Judgment and other judgments have been noticed by the Full Bench of High Court of Allahabad, on which heavy reliance has been made by this Court.
17. This Court is also conscious of the fact that it is not uncommon for the Courts to frame charges in alternative u/s 304B and Section 302 I.P.C. The reason is not far to seek. Although there may be no doubt as to the facts of the case, yet it could only be finally determined during trial, after examining all the witnesses as to whether conviction has to be made u/s 304B I.P.C. or Section 302 I.P.C. Therefore, it is quite possible that the trial court may convict and sentence an accused for Section 302 I.P.C., whereas the appellate court may actually come to the conclusion that based on the findings of the case, it is a case of conviction not u/s 302 I.P.C. but u/s 304 B I.P.C. as it has happened in the present case. It is for this reason, the appellate court has been empowered to "alter the findings" of the trial court in a given case, irrespective of the fact, where the accused stands acquitted on a particular Section, subject to the other restrictions contained in Section 386 Cr.P.C. and other provisions of law.
18. Accordingly, we hold that the accused appellant is guilty of offence punishable u/s 304B I.P.C. and not guilty of offence punishable u/s 302 I.P.C. Therefore, the conviction and sentence awarded to the accused appellant by the Sessions Court u/s 302 I.P.C. is set aside. Accused appellant Indra Singh is acquitted of the charge of offence punishable u/s 302 I.P.C. But he is convicted u/s 304B I.P.C. and is sentenced to rigorous imprisonment for a period of ten years.
19. With the above modification in the conviction and sentence, this appeal is disposed of Appellant is on bail. His bail is cancelled. Let a copy of this judgment be sent to the trial court to make the appellant Indra Singh serve out the sentence, modified by this Court. Lower Court record be sent back.
