CRLR/337/2021 of RAKSHITA PATHAK KANDPAL Vs THE STATE OF UTTARAKHAND THROUGH SECRETARY HOME GOVT OF UTTARAKHAND DEHRADUN

THE HIGH COURT OF UTTARAKHAND AT NAINITALCriminal Revision No.337 of 2021

Rakshita Pathak Kandpal

…….....Revisionist

State of Uttarakhand and others …...... Respondents

None is present for the revisionist. Ms. Manisha Rana, A.G.A. for the State of Uttarakhand/respondent no.1. Mr. Pooran Singh Rawat, Advocate for respondent nos.2 and 3.

JUDGMENT

Hon’ble Ravindra Maithani, J. (Oral)

The challenge in this revision is made to the

followings:-

(i)Judgment and order dated 29.11.2019, passed in Criminal Case No.3599 of 2013, State vs. Dr. Hemant Kandpal and another, by the court of Civil Judge (Jr. Div.)/Judicial Magistrate Haldwani, District Nainital (“the case”). By it, the respondent nos.2 and 3 (“the accused”) have been acquitted of the charge under Section 498-A, 323 IPC read with Sections 34, 504, 506 IPC and Sections 3/4 of The Dowry Prohibition Act, 1961 (“the Act”); and

(ii)The judgment and order dated 10.09.2021, passed in Criminal Appeal No.14 of 2020, State of Uttarakhand vs. Dr. Hemant Kandpal and another, by the court of Second Additional Sessions Judge, Haldwani, District Nainital (“the appeal”).

2. Heard learned counsel for the parties and perused the record.

3. It is admitted revision, which was admitted on 22.03.2022.Today, statement was given by the learned counsel for the accused that both the accused are dead. Therefore, learned counsel would submit that he may not represent the accused. Even the revisionist is not present before the Court.

4. criminal revision once admitted has to be decided on merits. In the case of Praban Kumar Mitra vs. State of West Bengal and another, 1959 Supp.(1) SCR 63, the Hon’ble Supreme Court has observed as hereunder:-

“ Whether it was an accused person or it was complainant who has moved the High Court in its revisional jurisdiction, if the High Court has issued rule, that rule has to be heard and determined in accordance with law, whether or not the petitioner in the High Court is alive or dead, or whether he is represented in court by legal practitioner. In

hearing and determining cases under Section 439 of the Code, the High Court discharges its statutory function of supervising the administration of justice on the criminal side.”

5. In the case of Madan Lal Kapoor vs. Rajiv Thapar and others, (2007) 7 SCC 623, the Hon’ble Supreme Court has held that like criminal appeal criminal revision cannot be dismissed in default.

6. In view of the settled law, the revision has to be decided. Therefore, the Court proceeds to examine the legality, correctness and propriety of the impugned judgements and orders.

7. The facts necessary to appreciate the controversy briefly stated are as follows. The revisionist and the accused Dr. Hemant Kandpal were married on 27.11.2009, but according to the FIR, after marriage, the revisionist was harassed and tortured in connection with demand of dowry. report was given to the SSP, Nainital, based on which, FIR No.67 of 2013, under Section 498-A, 323, 504, 506 IPC and Sections 3/4 of the Act was registered and the case investigated. After investigation charge-sheet was submitted against the accused for the offences punishable under Sections 498-A, 323, 504, 506 IPC and Sections 3/4 of the Act. The accused appeared in the case. On 15.09.2014, charge- under Sections 498-A,

323 read with 34, 504, 506 IPC and Sections 3/4 of the Act were framed against the accused.

8. In order to prove its case, the prosecution examined five witnesses namely, PW1 Rakshita Kandpal, PW2 Mahesh Chandra Pathak, PW3 SSI K.C. Arya, PW4 Constable Lalit Punetha and PW5 Investigating Officer.

9. The accused were examined under Section 313 of the Code of Criminal Procedure, 1973 (“the Code”). According to them, they are innocent and witnesses have falsely deposed against them. After hearing the parties, by the impugned judgment and order dated 29.11.2019, passed in the case, the accused were acquitted against the charges levelled against them. The judgment and order was upheld in the appeal.

10. As stated, accused are stated to have died. Accused were acquitted by the trial court and the finding has been upheld in appeal. The law is well settled that generally, an order of acquittal is not interfered with because the presumption of innocence of accused further strengthened by the acquittal. In the case of State of Rajasthan vs. Raja Ram, (2003)8 SCC 180, Hon’ble Supreme Court in para 7 observed on this aspect as hereunder:-

“7. 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. miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. In case where admissible evidence is ignored, duty is cast upon the appellate court to reappreciate the evidence in 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. (2002) 4 SCC 85 : 2002 SCC (Cri) 736 : JT (2002) 3 SC 387) 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 compelling reason for interference. These aspects were highlighted by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra (1973) 2 SCC 793 : 1973 SCC (Cri) 1033, Ramesh Babulal Doshi v. State of Gujarat (1996)9 SCC 225 : 1996 SCC (Cri) 972 and Jaswant Singh v. State of Haryana (2000) 4 SCC 484 : 2000 SCC (Cri) 991 : JT (2000) 4 SC 114.”

11. Unless there are compelling circumstances and substantial reasons for making an interference, generally

in the appeal against acquittal, an interference is not warranted. Moreover, it is not an appeal. It is revision because in the appeal the finding of acquittal has been upheld. The scope of revision is more restricted than the scope of appeal. Appreciation of evidence is generally beyond the scope of revision unless material evidences are ignored or inadmissible evidence is considered or the finding is perverse and is against the weight of evidence.

12. There are two witnesses of fact in the instant case. PW1 Rakshita Kandpal has stated that after marriage the accused Dr. Hemant Kandpal on 28.11.2009, she was harassed and tortured in connection with demand of dowry. She has stated quite in detail. PW2 Mahesh Chandra Pathak is the father of the revisionist. He has corroborated the statement of the PW1 Rakshita Kandpal in examination-in-chief. PW3 SSI K.C. Arya has conducted investigation in this matter. PW4 Constable Lalit Punetha proved certain documents and PW5 Investigating Officer has proved the charge-sheet.

13. In the impugned judgment and order, the Court has extensively discussed the evidence of PW1 Rakshita Kandpal and PW2 Mahesh Chandra Pathak. The court has scrutinized the statements in the light of cross-examination. It was found that the parties were well aware

of their social and economic status prior to the marriage. There was divorce petition that was filed by the accused Dr. Hemant Kandpal and it is only thereafter, wnen the conciliation proceeding failed, PW1 Rakshita Kandpal lodged an FIR. The court has observed that in order to pressurize the accused Dr. Hemant Kandpal, the FIR was lodged in the case. There is no medical evidence. The court observed that the prosecution has not been able to prove its case beyond reasonable doubt. It is based on the appreciation of evidence. The appellate court also after analysing the evidence, found the finding of acquittal correct and lawful. There is no reason to make any departure from the finding, recorded by the courts below.

14. Having considered the entire material, this Court is of the view that there is no illegality, error or impropriety in the impugned judgments and orders, which may warrant any interference. Accordingly, the revision deserves to be dismissed.

15. The revision is dismissed.

Sanjay

(Ravindra Maithani, J.) 21.03.2024