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2011 DIGILAW 1156 (MP)

Anita Kushwah v. State of M. P.

2011-10-11

ANIL SHARMA, S.N.AGGARWAL

body2011
ORDER (Oral) S.N. Aggarwal, J. -- 1. The respondents No.2 and 3 were tried on charge of rape under section 376 IPC. The charge under section 376 IPC was framed against them by the trial Court on 24th October 1996. The charge was later on amended vide order dated 1st July 1999 and respondents No.2 and 3 were charged for gang rape of the prosecutrix under section 376 (2) (g) of IPC. The trial Court vide its impugned judgment has acquitted the respondents No.2 and 3 of charge of gang rape against them. The prosecutrix aggrieved by the acquittal of the respondents No.2 and 3 has filed the present revision petition. This revision petition was filed in 200 1 as at that time there was no provision for appeal by the complainant against the judgment of acquittal of the accused persons. 2. In K. Chinnaswamy Reddy v. State of Andhar Pradesh and another, AIR 1962 SC 1788 , it was held by the Hon'ble Supreme Court that an order of acquittal can be set aside by the High Court even in revision against the judgment of acquittal filed by the private party even if the State has not filed any appeal. It was, however, held by the Hon'ble Supreme Court in the said judgment that the High Court should exercise its jurisdiction in revisional jurisdiction to set aside the judgment of acquittal only in exceptional cases when there is some glaring defect in the procedure or manifest error on the point of law and consequently a flagrant miscarriage of justice. 3. In Akalu Ahir and others v. Ramdeo Ram, 1973 CAR 343 (SC), it was held by the Hon 'ble Supreme Court that the High Court should not set aside the trial lightly and may interfere in judgment of acquittal in exercise of its revisional jurisdiction only if it finds that the acquittal is not in accordance with rules of criminal jurisprudence. 4. In Vimal Singh v. Khuman Singh and another, 1998 CAR 486, it was held by the Hon'ble Supreme Court that the powers of the High Court in Criminal Revision is limited and that it should not convert the order of acquittal into an order of conviction unless there is a manifest error of law or procedure. 5. 4. In Vimal Singh v. Khuman Singh and another, 1998 CAR 486, it was held by the Hon'ble Supreme Court that the powers of the High Court in Criminal Revision is limited and that it should not convert the order of acquittal into an order of conviction unless there is a manifest error of law or procedure. 5. We have examined the present revision on the touchstone of law regarding powers of the High Court in Criminal Revision laid down by the Hon'ble Supreme Court in the aforementioned judgments. This revision filed before us is by the prosecutrix. She has alleged gang rape with her by respondents No.2 and 3 in the incident that took place on 5th November 1994. The FIR of the incident was lodged by her promptly on next day of the occurance. The respondent No.2 and 3 were initially charged by the trial Court vide order dated 24th October 1996 for offence under section 376 IPC. At a stage when trial was at last stage of prosecution evidence, the Trial Court on its own amended the charge vide order dated 1st July 1999 and converted the charge from section 376 to section 376 (2) (g) of IPC. On the day the charge was amended by the trial Court an application was filed on behalf of the accused persons for permission to recall the prosecutrix for further cross-examination, which permission was granted by the trial Court to them. A perusal of order of the trial Court dated 1st July 1999, by which charge was amended would show that no opportunity was given by the trial Court to the prosecution to lead evidence on amended charge and this amounts to violation of mandatory provisions contained in section 217 of the Code of Criminal Procedure 1976. A perusal of the impugned judgment particularly para 16 thereof would show that the respondents No.2 and 3 have been acquitted by the trial Court only because the evidence of the prosecutrix was not corroborated either by medical evidence or by any other independent evidence. The trial Court has noted in its impugned judgment that the prosecution has not produced medical evidence to prove rape upon the prosecutrix or to prove potency of respondent No.2 that he was capable of doing act of sexual intercourse. The trial Court has noted in its impugned judgment that the prosecution has not produced medical evidence to prove rape upon the prosecutrix or to prove potency of respondent No.2 that he was capable of doing act of sexual intercourse. We have found from the record of the trial Court that the charge was amended by the trial Court on 1st July 1999 at a stage when the prosecution had not yet closed its evidence. Assuming arguendo that even if the prosecution had closed its evidence at a time when charge was amended by the trial Court still in view of provisions contained in section 217 of Code of Criminal Procedure 1976. it was obligatory on the part of the trial Court to have given an opportunity to the prosecution and also to the defence to lead such further evidence as they deem proper on amended charge. Non-grant of such an opportunity in our opinion. amounts to manifest error of law and procedure in the impugned judgment acquitting respondents No.2 and 3 of the charge. In our opinion. the impugned judgment suffers from manifest error of law which needs to be corrected by us in exercise of our revisional jurisdiction. We have taken note of the fact that the impugned judgment of acquittal in favour of respondents No.2 and 3 is of the year 2001. However. we find that not granting an opp0l1unity to the prosecution to lead further evidence on amended charge is an error on the part of the trial Court for which the victim of the incident cannot be made to suffer. Accordingly, we deem it appropriate to remand the case back to the trial Court for permitting the prosecution to lead such further evidence in the case as it may consider necessary with an equal opportunity to the accused person to further cross-examine the witnesses of the prosecution including their right to produce their evidence in defence. 6. For the foregoing reasons, the impugned judgment of acquittal, whereby respondents No.2 and 3 have been acquitted of charge under section 376 (2) (g) IPC against them is hereby set aside. the case is remanded back to the trial Court with directions to proceed further with the trial against the accused persons in accordance with law. Since respondent No.2 being one of the accused persons had died during pendency of the present revision. the case is remanded back to the trial Court with directions to proceed further with the trial against the accused persons in accordance with law. Since respondent No.2 being one of the accused persons had died during pendency of the present revision. the trial against him stands abated. The remaining trial shall now proceed only against respondent No.3. 7. Having regard to the fact that the incident in this case is of the year 1994, we direct the trial Court to conclude the remaining trial as expeditiously as possible but not later than four months of receipt of certified copy of this order. Lest we may be misunderstood, we make it clear that our remand order should not be misconstrued by the trial Court as any suggestion by us for convicting respondent No.3 being the lone accused person left in the case. Trial Court on the basis of evidence shall be free to form its independent opinion regarding the guilt of respondent No.3 in the case. This revision is disposed of accordingly.