Research › Search › Judgment

Madhya Pradesh High Court · body

2007 DIGILAW 645 (MP)

Pushpa Bai v. State of M. P.

2007-06-26

RAKESH SAKSENA

body2007
ORDER 1. Petitioner/complainant has filed this revision against the order dated 28.9.2001, passed by Special Judge (SC/ST Act), Narsinghpur, in Sessions Trial No. 124/2000, acquitting the respondents No.2, 3 and 4 of the offence under section 316 of IPC. 2. The prosecution case is that complainant Pushpabai was married to one Padam Singh of village Deonagar. That marriage got broken. Thereafter, she was residing at her parents house in village Bedu. Accused roshan, who was resident of the same village, assuring her that he would marry her, established carnal relations with her, as a result of which, she conceived. Roshan wanted to get her pregnancy terminated, but she declined. Though, he had assured her to marry, but he refused. On 19.2.2000, complainant alongwith her mother went to the house of Roshan and narrated whole episode to the mother of accused Roshan. Mother of Roshan agreed to keep Pushpabai at her house. When mother of Pushpabai went back, after about an hour Chhoti Bai kicked the complainant in her abdomen and asked her as to why she had come there. It is also said that accused Chhote @ Shiv Kumar and Roshan also man handled her. Roshan also compelled her to swallow some. medicine. Some how she managed to escape and ran towards her house. She felt severe pain in her abdomen and after reaching home she got unconscious. When she regained consciousness, her mother informed her that she gave birth to a male child. When complainant and her mother were going to District Hospital, on way, child died. The report of the said incident was lodged at Police Station Narsinghpur whereupon, a murg was registered and after enquiry, Crime No. 25/2000 was registered under section 316 IPC. 3. On postmortem examination of the newly born child, PW 1 Dr. Alok Shrivastava found that the cause of death of the child was injury to his liver. The death was caused due to rupture of liver. Injury was antemortem. The injuries of complainant Pushpabai were also examined by PW 5 Dr. Preeti Singhai. No external or internal injury was found on her body. Size of her uterus was of about 14 to 16 weeks, it was soft and shrunk. The opinion of doctor was that delivery was normal and had taken place within twenty four hours. It was also opined that the age of the foetus might be more than four months. No external or internal injury was found on her body. Size of her uterus was of about 14 to 16 weeks, it was soft and shrunk. The opinion of doctor was that delivery was normal and had taken place within twenty four hours. It was also opined that the age of the foetus might be more than four months. After investigation, charge sheet was filed. 4. On charge being framed, accused abjured guilt and pleaded false implication. 5. During trial, besides medical evidence, prosecution examined PW 3 Kamta Prasad, PW 4 Pushpabai, PW 6 Savitri Bai and PW 9 Takhat Singh. After appreciating the evidence of aforesaid witnesses, learned trial Court came to the conclusion that the story as given by the prosecution was not worthy of credence and it could not be held with certainty that the death of quick born child was caused as a result of the act of accused persons. Learned trial Court further found that the prosecution story at the trial was altogether different from the version of the prosecution, as given in the written report Ex. P-10, submitted by the complainant and her statements recorded during investigation as Ex. D-1 and D-2. 6. In view of the above circumstances, learned trial Court acquitted the accused persons. 7. Learned counsel for the petitioner/complainant submits that learned trial Court has mis-appreciated the evidence on record and has drawn incorrect inferences from the evidence of Dr. Alok Shrivastava (PW 1) and Dr. Preeti Singhai (PW 5). The judgment of acquittal is, therefore, liable to be set aside. 8. On the other hand, learned counsel for the accused/non-petitioners submits that the evidence on record was rightly scrutinized by the trial Court. Even if two inferences were possible on the basis of evidence on record, the finding of acquittal cannot be disturbed by this Court in revisional jurisdiction. He places reliance on the law laid down by the apex Court ill Thankappan Nadar and others v. Gopal Krishnan and another [ (2002) 9 SCC 393 ]. 9. In the case of Thankappan Nadal' and others (supra), the apex Court relying upon the cases of Akalu Ahir v. Ramdeo Ram [ (1973) 2 SCC 583 ] and Vimal Singh v. Khuman Singh [ (1998) 7 SCC 223 ] held: "9. 9. In the case of Thankappan Nadal' and others (supra), the apex Court relying upon the cases of Akalu Ahir v. Ramdeo Ram [ (1973) 2 SCC 583 ] and Vimal Singh v. Khuman Singh [ (1998) 7 SCC 223 ] held: "9. Coming to the ambit of power of the High Court under section 401 of the Code, the High Court in its revisional power does not ordinarily interfere with judgments of acquittal passed by the trial Court unless there has been manifest error of law or procedure. The interference with the order of acquittal passed by the trial Court is limited only to exceptional cases when it is found that the order under revision suffers from glaring illegality or has caused miscarriage of justice or when it is found that the trial Court has no jurisdiction to try the case or where the trial Court has illegally shut out the evidencewhich otherwise ought to have been considered or where the material evidence which clinches the issue has been overlooked. These are the instances where the High Court would be justified in interfering with the order of acquittal. Subsection (3) of section 401 mandates that the High Court shall not convert a finding of acquittal into one of conviction. Thus, the High Court would not be justified in substituting an order of acquittal into one of conviction even if it is convinced that the accused deserves conviction. No doubt, the High Court in exercise of its revisional power can set aside an order of acquittal if it comes within the ambit of exceptional cases enumerated above, but it cannot convert an order of acquittal into an order of conviction. The only course left to the High Court in such exceptional cases is to order retrial." 9. Same is the view taken by this Court in Logendranath Jha v. Polai Lal Biswas, K. Chinnaswamy Reddy v. State of A.P., Mahendra Pratap Singh v. Sarju Singh, Pakalapati Narayana Gajapathi Raju v. Bonapalli Peda Appadu and Ayodhya Dube v. Ram Sumer Singh." 10. In the light of the above settled position of law, the scope of interference in revisional jurisdiction by the High Court against an order of acquittal is very limited and it cannot exercise the revisional jurisdiction to appreciate the evidence. In the light of the above settled position of law, the scope of interference in revisional jurisdiction by the High Court against an order of acquittal is very limited and it cannot exercise the revisional jurisdiction to appreciate the evidence. On perusal of the judgment passed by the trial Court, it appears that it had appreciated the evidence of PW 4 Pushpabai, PW 6 Savitri Bai and PW 9 Takhat Singh in a correct perspective. It is seen that the prosecution story given by these witnesses is substantially different from that given in written report Ex. P-10 and police statements of Pushpabai viz Ex. D-l and D-2. Before the trial Court, the prosecution witnesses stated that there had been a settled marriage between the accused Roshan and the complainant Pushpabai and she was sent to the house of accused persons. She had lived in the house of accused for a period of about 4-5 years. In the past also she had given birth to a male child, who had died. Again, after 4-5 years she had conceived, but the present incident of assaulted had occurred. As against this version, the story given in written report Ex. P-10 is that Pushpabai had developed illicit relations with accused Roshan, due to which she had conceived. When Roshan refused to marry her, her mother had taken her to the house of accused persons. 11. Besides above, on the evidence of PW 5 Dr. Preeti Singhai, it is apparent that no external or internal injury was found on the body of the complainant. In the opinion of doctor, her delivery was normal. According to PW 6 Savitribai, the mother of Pushpabai, when Pushpabai came to her house, she found her clothes wet and she had given birth to a child. After cleaning the child, she had kept that child by the side of Pushpabai. She did not say that child was dead. On the contrary, she said that when they were going to hospital, on the way, child died. 12. Trial Court further considered the evidence of PW 1 Dr. Alok Shrivastava, who said that if at the time of delivery the foetus is carelessly pressed, the injury of rupture of liver may occur. It is on record that the delivery was done at the house of Savitri Bai without any medical aid. 12. Trial Court further considered the evidence of PW 1 Dr. Alok Shrivastava, who said that if at the time of delivery the foetus is carelessly pressed, the injury of rupture of liver may occur. It is on record that the delivery was done at the house of Savitri Bai without any medical aid. The possibility that injury to child might have been caused by the careless conduction of delivery, cannot be ruled out. 13. On perusal of the evidence on record and the findings arrived at by the trial Court in acquitting the accused persons, this Court does not find any procedural illegality or manifest error of law in the order passed by the Sessions Judge. Even after re-appreciation of evidence, this Court does not find any error to take a different view from that of taken by the trial Court. Even if two views are possible, view taken by the trial Court cannot be disturbed by setting aside the order of acquittal, unless it is perverse or absurd so as to result in miscarriage of justice. 14. In the result, this revision is dismissed.