Mayabai Gajanan Wagh v. Gajanan Madhukar Wagh & others
2001-07-17
R.K.BATTA
body2001
DigiLaw.ai
JUDGMENT - R.K. BATTA, J.:---The applicant had lodged first information report with the police relating to dowry demand as also ill-treatment under section 498-A of the Indian Penal Code. After investigation, charge-sheet was filed for offences under sections 498-A, 504 and 506 read with section 34 of the Indian Penal Code. The prosecution had examined six witnesses in support of the charges. The trial Court vide judgment dated 17-4-1998 acquitted the accused, viz. respondents No. 1 to 4 of the said charges. The said acquittal has been challenged in the exercise of revisional jurisdiction of this Court. 2. The learned Senior Advocate for the applicant argued at length. The main submissions made by learned Senior Advocate are--- (a) Marriage lasted only for two months. (b) Suggestions given relating to letters written by one Sanjay Wadalkar to the applicant, by itself, amounted to mental cruelty. (c) Keeping in mind the human course of conduct, there was no reason for the complainant to abandon marital home unless she was ill-treated and demand for dowry was made. (d) No attempts were made by respondents 1 to 4 to bring back the applicant. (e) That, the findings of the trial Court that P.W. 1 had not stated anything in respect of ill-treatment at the hands of the accused are contrary to the evidence of complainant/applicant (P.W. 1) and that the trial Court has overlooked evidence of ill-treatment on record which had gone unchallenged. 2. On merits of appreciation of evidence relating to ill-treatment, reliance has been placed on (Baldev Krishan v. State of Punjab)1, 1997(4) S.C.C. 486 , (Pawnkumar and others v. State of Haryana)2, 1998(3) S.C.C. 309 , (Rachamreddi Chyenna Reddy and others v. State of A.P.)3, 1999(3) S.C.C. 97 and (Asokan v. State of Madras)4, 2000(4) S.C.C. 68 . On the question of no challenge to the evidence of ill-treatment on record, reliance has been placed on (A.E.G. Carapiet v. A.Y. Derderian)5, A.I.R. 1961 Calcutta 359, (State of Himachal Pradesh v. Thakur Dass and etc. etc.)6, 1983 Cri.L.J. 1694, and (Motilal Bejnath and others v. State of M.P.)7, 1990 M.P.L.J. 228. 3.
On the question of no challenge to the evidence of ill-treatment on record, reliance has been placed on (A.E.G. Carapiet v. A.Y. Derderian)5, A.I.R. 1961 Calcutta 359, (State of Himachal Pradesh v. Thakur Dass and etc. etc.)6, 1983 Cri.L.J. 1694, and (Motilal Bejnath and others v. State of M.P.)7, 1990 M.P.L.J. 228. 3. In respect of delay in filing the first information report, it was urged before me that the trial Court has not taken the same into consideration while ordering acquittal, but the delay has been satisfactorily explained inasmuch as brother of the applicant had expired on 18-5-1996 and the applicant was also ill on account of injuries suffered by her due to ill-treatment by respondents No. 1 to 4. In this respect, reliance has been placed on (Ram Murti and another v. State of Haryana)8, A.I.R. 1976 S.C. 2455 and (State of Himachal Pradesh v. Gian Chand)9, 2001(3) SCALE 565 . It was also pointed out by learned Senior Counsel that though the case of the respondents No. 1 to 4 in their statement under section 313 of Cri.P.C. is that the applicant had, on her own, left the marital home, yet no suggestion in respect of this was given by the accused to any of the prosecution witnesses. According to learned Senior Advocate, the statement of the complainant/applicant with the attending circumstances on record is sufficient to set aside the order of acquittal in the exercise of revisional jurisdiction of this Court and the matter is required to be sent for re-trial. In this respect, reliance is placed on (K. Chinnaswamy Reddy v. State of A.P.)10, A.I.R. 1962 S.C. 1788, and (Akalu Ahir others v. Ramdeo Ram)11, A.I.R. 1973 S.C. 2145. 4. On the other hand, learned A.P.P. urged before me that there are neither specific allegations relating to assault nor the material details as to the dates of assault and the dates on which the demands were made have been spoken of by any of the prosecution witnesses. According to him, the evidence on record has been appreciated in correct perspective in the light of well-settled principles of assessment of evidence and that the cross-examination is not the only method of discrediting a witness and the courts are not bound to accept the testimony which, on the face of it, is unacceptable merely because there was no cross-examination.
According to him, the evidence on record has been appreciated in correct perspective in the light of well-settled principles of assessment of evidence and that the cross-examination is not the only method of discrediting a witness and the courts are not bound to accept the testimony which, on the face of it, is unacceptable merely because there was no cross-examination. In this respect, reliance has been placed on the judgment of the Apex Court in (Juwarsingh and others v. The State of M.P.)12, A.I.R. 1981 S.C. 373. According to learned A.P.P., no case is made out for interference in the revisional jurisdiction of this Court and the revision be dismissed. 5. The arguments advanced by learned Senior Counsel for the applicant have to be appreciated bearing in mind the parameters of revisional jurisdiction. The Apex Court in K. Chinnaswamy Reddy v. State of Andhra Pradesh another (supra) has laid down that it is open to a High Court in revision to set aside an order of acquittal even at the instance of private parties, but this jurisdiction should 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. The Apex Court has then noted that sub-section (4) of section 439 Cri.P.C. forbids 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 and this places limitations on the power of High Court to set aside a finding of acquittal in revision and it is only in exceptional cases that this power should be exercised. The Apex Court has further observed that it is not possible to lay down the criteria for determining such exceptional cases which would cover all contingencies, but some cases may be indicated which would justify the High Court in interfering with a finding of acquittal in revision.
The Apex Court has further observed that it is not possible to lay down the criteria for determining such exceptional cases which would cover all contingencies, but some cases may be indicated which would justify the High Court in interfering with a finding of acquittal in revision. These cases, according to the Apex Court, 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. 6. In Akalu Ahir and others v. Ramdeo Ram (supra) the Apex Court has reiterated the view taken in the earlier judgment in K. Chinnaswamy Reddy v. State of A.P. another (supra). In para 10 of the judgment in Akalu Ahir and others v. Ramdeo Ram (supra) the Apex Court has observed that no doubt, the appraisal of evidence by the trial Court in the case in hand is not prefect or free flaw and a Court of appeal may have felt justified in disagreeing with its conclusion but from this, it does not follow that on revision by a private complainant, the High Court is entitled to reappraise the evidence for itself as if it is acting as a Court of appeal and then order a re-trial. In para 11 of the said judgment the Apex Court has further observed that in re-trial unconscious impression on the mind of the Court, holding the fresh trial, may be left and this aspect also seems to lend some support to the view that normally re-trial should not be ordered unless there is some infirmity rendering the trial defective. The Apex Court thus held that the High Court committed a serious error by directing re-trial on the basis of its re-assessment of oral evidence on record while exercising its power of revision at the instance of a private complainant. 7. Coming to the question whether a case has been made out for interfering in acquittal and for ordering re-trial, I may refer to the material evidence on record.
7. Coming to the question whether a case has been made out for interfering in acquittal and for ordering re-trial, I may refer to the material evidence on record. The applicant/complainant was married to respondent No. 1 on 15-3-1996 and she stayed in the marital house for only two months upto 18-5-1996. The prosecution case is that the respondents 1 to 4 asked the applicant/complainant to bring money from parents' house. When she refused, she was severely beaten, was kept without food and was given threat to kill as also the second marriage of respondent No. 1 would be performed. On 17-5-1996 the brother of applicant had been to her marital house to demand money from father-in-law of applicant/complainant which had been given by him to the father-in-law of the applicant, but respondents 1 to 4 gave threats to her brother who left. On the same day, the applicant/complainant was severely beaten by all the respondents 1 to 4, she was confined to a room in the night and was not given any food. On the next day, that is to say, on 18-5-1996 respondents No. 1 to 4 beat her, took all of her ornaments and drove her out of martial home. The prosecution case further is that the respondents No. 1 to 4 told the applicant/complainant that she should not come back unless she brings Rs. 10,000/- and 10 iron sheets. The brother of applicant who had come to her marital house on 17-5-1996 expired on 18-5-1996 and subsequently, applicant was ill on account of which the complaint was filed on 20th August, 1996. 8. The prosecution had examined six witnesses. The trial Court acquitted the respondents No. 1 to 4 vide order dated 17-4-1998 which is the subject matter of challenge in this revision. 9. Admittedly, the applicant/complainant stayed in the marital house only for two months. According to applicant/complainant (P.W. 1), accused treated her well for a period of one month and thereafter they started ill-treating her. According to P.W. 2, father of applicant/complainant, after marriage, for a period of one an half months, the accused treated his daughter well. According to P.W. 3 Chhaya, sister of complainant, complainant/applicant was treated well for two months and thereafter demand for money was made.
According to P.W. 2, father of applicant/complainant, after marriage, for a period of one an half months, the accused treated his daughter well. According to P.W. 3 Chhaya, sister of complainant, complainant/applicant was treated well for two months and thereafter demand for money was made. According to P.W. 4 Tukaram, brother of complainant and P.W. 5 Vatsalabai, mother of applicant/complainant, for a period of one month, the accused treated the complainant well and thereafter they started ill-treating her. P.W. 6 Mangala, sister of applicant No. 1 also states that there was ill-treatment of applicant at the hands of accused. As a matter of fact, none of the witnesses (P.Ws. 2 to 6) has witnessed ill-treatment. According to applicant/complainant (P.W. 1), she had not stated in respect of ill-treatment to anybody. It is pertinent to note that though P.Ws. 2 to 6 speak of ill-treatment, but they have not given any details of ill-treatment as such. Ill-treatment is a term having wider connotation and as I have already stated that no details of ill-treatment have been given. In their deposition, there are omnibus statements that the accused used to ill-treat the applicant/P.W. 1. Therefore, we have to fall back on the evidence of applicant/complainant (P.W. 1). According to her, the accused were asking her to bring money and tin-sheets from her father and on that count they were beating her and keeping her without food. The accused did not allow her to see her brother and abused her brother. She has further stated that she was beaten for nearly 2 to 2 and half hours and 50-60 neighbourers had assembled there, but on one intervened or came for her rescue. None of them was examined by prosecution. According to applicant/complainant, she sustained injuries all over her body due to beating by the accused and the said injuries remained on her body for about fifteen days after which she was cured. In case there were injuries all over body of the applicant/complainant (P.W. 1) on account of severe beating which is alleged to have taken place on 17-5-1996 and 18-5-1996, the applicant/complainant could get herself examined from doctor in respect of the said injuries which could lend credence and support to the version of the applicant/complainant (P.W. 1). According to her, injuries were on her body for fifteen days.
According to her, injuries were on her body for fifteen days. It is no doubt true that the brother of complainant died on 18-5-1996, but since the injuries remained for about fifteen days on her person, the applicant could get herself examined for the said injuries. The complaint was filed after about three months. In the light of this material on record, the trial Court found that the case had not been proved beyond reasonable doubt and he recorded acquittal of respondents 1 to 4. Learned Senior Advocate for applicant has cited number of rulings on the question that there was no challenge to ill-treatment. However, I have already pointed out that except for general allegations relating to ill-treatment, no material details have been given. The allegations of complainant of beating are also omnibus in nature. Such allegations cannot inherently be accepted without details or corroboration especially when it is the case of the prosecution that there were injuries on the person of the applicant complainant (P.W. 1) which continued on her person for a period of fifteen days. The Apex Court has laid down in Jawarsingh others v. The State of M.P. (supra) that cross-examination is not the only method of discrediting a witness and if the testimony of witnesses is on the face of it is unacceptable, courts are not bound to accept their testimony merely because there was no cross-examination. The trial Court found that implicit reliance could not be placed on the testimony of complainant as there were contradictions and omissions vis a vis the complaint. In the circumstances, it cannot be said that the evidence has been overlooked. I also do not find that there is any wrong finding though it has not been properly expressed. The trial Court has recorded what was stated by applicant/complainant (P.W. 1) that she had not stated anything about ill-treatment to anybody. On the basis of arguments advanced by learned Senior Advocate for applicant as to why the complainant had abandoned the marital house and why no efforts were made to bring her back, no conclusions can be drawn relating to commission of offence in question. In my opinion, the view taken by the trial Court is plausible and possible view on the basis of evidence on record and it can be said to be perverse.
In my opinion, the view taken by the trial Court is plausible and possible view on the basis of evidence on record and it can be said to be perverse. At any rate, on the basis of evidence on record, I do not consider that this is a case where re-trail should be ordered. 10. In view of the above, revision is hereby dismissed. Revision dismissed. -----