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2008 DIGILAW 1023 (JHR)

Parvati Devi v. State of Jharkhand

2008-08-28

AJIT KUMAR SINHA

body2008
JUDGMENT: Ajit K. Sinha, J.-The present appeal has been preferred under Section 378(4) of the Code of Criminal Procedure by the complainant challenging the judgment and order of acquittal dated 18th April, 2007, passed by the learned Judicial Magistrate, 1 st Class, Bermo at Tenughat, in Complaint Case No. 237 of 1998/Tr. No. 416 of 2007, whereby and whereunder, respondent no. 2 has been acquitted of the charges under Sections 323, 494 and 498A of the Indian Penal Code. 2. In Cr. M.P. No. 925 of 2007, preferred by the appellant herein, seeking leave to appeal, a Division Bench of this Hon'ble Court vide order dated 26th June, 2008 granted leave to appeal against the order of acquittal. 3. The facts, in brief, are set out as under:- As per the prosecution case, the complainant-appellant Parvati Devi was married with respondent no. 2, Punu Bhuiyan, in the year, 1985. The couple lived amicably for eleven years. Thereafter, the accused (respondent no. 2 herein) demanded a motorcycle, a colour T.V. and RS.15,000/- in cash from the father of the complainant. When the demand was not complied, the complainant was physically and mentally tortured by the accused, forcing the complainant to leave her matrimonial home on 15th May, 1998 and to live with her parents. According to the complainant, the accused entered into a second marriage and started cohabiting with the second wife. On 16th May, 1998 a Panchayat meeting was held between the two sides at Sunday Bazar despite which the accused continued to torture the complainant for the colour T.V. and cash of RS.15,000/-. On 5th November, 1998 the complainant's father Rameshwar Bhuiyan took the complainant to her in-laws house at Village-Jageshwar Bihar but the accused refused to take back the complainant. Thereafter, a complaint case - was filed by the complainant being C.P. No. 237 of 1998 and summons were issued to accused Punu Bhuiyan (husband of the complainant), the second wife of Punu Bhuiyan, the second father-in-law and the second mother-in-law of the said Punu Bhuiyan. However, the trial proceeded only against the accused husband Punu Shuiyan and the other accused were declared absconders. 4. The allegation made in the complaint petition was that the accused did not keep up his promise to pay the amount of Rs. However, the trial proceeded only against the accused husband Punu Shuiyan and the other accused were declared absconders. 4. The allegation made in the complaint petition was that the accused did not keep up his promise to pay the amount of Rs. 400/- to the complainant towards the expenses and instead drove away the complainant from his house to enter into second marriage. C.W. Nos. 3, 4 and 5 have deposed that the accused and the complainant were married for over 17 to 18 years and after 9 to 10 years of married relationship, their relation became strained on account of demand of colour T.V. and cash of Rs. 15,000/-. It has also been stated that the complainant left the matrimonial home and came to her parent's house where she stated the incident relating to torture to her parents. In a Panchanama prepared on 16th May, 1998 it was decided that the accused shall pay Rs. 4001- to the complainant towards the expenses and will not torture her any more. 5. The learned Judicial Magistrate finally acquitted the accused-respondent no. 2 herein from all the charges vide its impugned order dated 18th April, 2007, which is under challenge in this appeal. 6. According to the appellant, respondent no. 2 is liable for conviction and the learned court below has completely failed to take into consideration the evidence adduced by the complainant in support of her case. It has also been contended that the findings, recorded in the impugned judgment are perverse and beyond the materials available on record. It has also been contended that the complainant's witnesses remained consistent and corroborated each other on the point that the complainant and accused were married for a long time and there was dowry demand. It has also been alleged that the complainant was beaten and not treated properly and a Panchayat meeting was also held on 16th May, 1998 and thus, the essential ingredients of Sections 323, 494 and 498A of the Indian Penal Code were clearly made out. It has also been contended that Section 114(g) of the Indian Evidence Act was attracted as the second wife, second father-in-law and second mother-in-law of the accused were absconding. 7. Counsel for the respondents has referred to and relied upon a judgment of the Hon'ble Supreme Court, as reported in 2007(7) SCALE page-137 (Mahadeo Laxman Sarane & Anr. VS. It has also been contended that Section 114(g) of the Indian Evidence Act was attracted as the second wife, second father-in-law and second mother-in-law of the accused were absconding. 7. Counsel for the respondents has referred to and relied upon a judgment of the Hon'ble Supreme Court, as reported in 2007(7) SCALE page-137 (Mahadeo Laxman Sarane & Anr. VS. State of Maharashtra), which is also a case of appeal against acquittal. However, the ratio of the judgment relied is against him. In this case the Hon'ble Supreme Court clearly held that the High Court should not interfere with the order of acquittal unless the same is shown or proved to be perverse or unreasonable. 8. The law with regard to the appeal against acquittal is well settled and has been summarized in a recent judgment, as reported in JT. 2008(6) SC1 (Mahesh son of Janardhan Gonnade VS. State of Maharashtra), wherein, the Hon'ble Supreme Court has taken into consideration paragraph no. 6 of the judgment rendered by the Hon'ble Supreme Court in the case of Tota Singh & Anr. VS. State of Punjab, reported in J-T. 1987(2) SC 20, which is quoted as under:- "6 The jurisdiction of the appellate court in dealing with an appeal against an order of acquittal is circumscribed by the limitation that no interference is to be made with the order of acquittal unless the approach made by the lower court to the consideration of the evidence in the case is vitiated by some manifest illegality or the conclusion recorded by the court below is such which could not have been possibly arrived at by any court acting reasonably and judiciously and is, therefore, liable to be characterized as perverse. Where two views are possible on an appraisal of the evidence adduced in the case and the court below has taken a view which is a plausible one, the appellate court cannot legally interfere with an order of acquittal even if it is of the opinion that the view. taken by the court below on its consideration of the evidence is erroneous. Again in the case of State of Goa VS. taken by the court below on its consideration of the evidence is erroneous. Again in the case of State of Goa VS. Sanjay Thakran & Anr., reported in J.T. 2007(5) SC 146 the parameters, as settled by the Hon'ble Supreme Court with regard to appeal against acquittal, was reiterated and the Hon'ble Supreme Court held that 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. A miscarriage of justice, which may arise from acquittal of the guilty, is no less than the conviction of an innocent. 9. It is well settled that the Hon'ble High Court even though has the power to review the order of acquittal, but it has been equally well settled that the presumption of innocence of the accused which has been reinforced by his acquittal by the trial court and the findings of the trial court which had the advantage of seeing the witnesses and hearing their evidence could not be reversed unless there are very substantial and compelling reasons. 10. Thus, the appellate court must bear in mind that in case of acquittal there is a double presumption in favour of the accused. Firstly the presumption of innocence under the fundamental principle of criminal jurisprudence and secondly the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court. 11. In the light of the aforesaid consistent position of law, as laid down by the Hon'ble Supreme Court, I have considered the evidence of complainant's witnesses and their depositions and the impugned order of acquittal under challenge. It appears that the complaint was filed as an afterthought and the entire allegation of torture between the period 15th May, 1995 to 4th November, 1995 is false and unsustainable. Even as per the evidence of the complainant, she had left the matrimonial home on 15th May, 1998 and was with her parents till 4th November, 1995. The complainant's witnesses further admit that even on 4th November. Even as per the evidence of the complainant, she had left the matrimonial home on 15th May, 1998 and was with her parents till 4th November, 1995. The complainant's witnesses further admit that even on 4th November. 1995 when she went to her in-laws' house, she was not allowed entry. The admitted position thus follows is that the complainant left the matrimonial home on 15th May, 1995 and thereafter lived with her parents. 12. The second charge with regard to bigamy under Section 494 of the Indian Penal Code has also been rightly rejected by the trial court in absence of any documentary evidence with regard to second marriage of respondent no. 2. The learned trial court has rightly held that no case under Section 494 of the Indian Penal Code is made out since no document or any evidence has "been produced with regard to the date of marriage, place of marriage and the customs and the proof of second marriage. 13. The learned trial court has further held that even the offence under Section 323 of the Indian Penal Code is also not made out in view of the fact that the complainant herself in her evidence has stated that she left the matrimonial home on 15th May, 1995 and, thereafter, lived at her parent's house and, thus, the question of torture during that period by the accused is false and unsustainable. 14. Even Section 498A of the Indian Penal Code is not attracted for the sole reason that the complaint was made much after seven years of marriage and the allegation about demand of dowry was after eleven years of marriage and the complaint was filed after thirteen years of marriage. 15. In the aforesaid background, the appeal against acquittal is devoid of any merit and is, accordingly, rejected without any order as to costs.