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2014 DIGILAW 224 (CHH)

Vineeta Kashyap v. Arun Singh Kashyap

2014-06-18

SANJAY K.AGRAWAL

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Order Sanjay K. Agrawal, J. 1. Questioning the legality and validity of the judgment of acquittal of offence under Section 498A read with Section 323 of the Indian Penal Code (henceforth 'IPC'), sole applicant/complainant Vineeta Kashyap has filed this revision under Section 397/401 of the Code of Criminal Procedure (henceforth 'CrPC'). 2. The core facts required for disposal of this revision are as under: (2.1) The Station House Officer, Mahilaa Police Station, Bilaspur filed a charge sheet against Arun Kashyap under Section 498A read with Section 323 IPC, his mother Rajdevi alias Radhabai under Section 498A IPC and his sister Shashidevi under Section 498A IPC stating inter alia that on 21-4-2001 at 11:30 P.M., non-applicant No. 1/husband Arun Kashyap harassed the applicant/wife/complainant Vineeta Kashyap demanding Colour TV, Two-Wheeler with Gear and Gold Chain etc. and thereby treated her with cruelty, which is an offence punishable under Section 498A IPC and also committed marpeet with her, which is an offence punishable under Section 323 IPC. Charges were duly framed against non-applicants Arun Kashyap, Rajdevi alias Radhabai and Shashidevi. The non-applicants abjured the guilt and entered into trial. (2.2) After full fledged trial, the trial Magistrate acquitted of the non-applicants (names of non-applicants Rajdevi alias Radhabai and Shashidevi have been deleted by the applicant/complainant during the pendency of the revision) of the charges framed against them recording the following findings: 1. That the Court statement of complainant Vineeta Kashyap is at variance with her statement made under Section 161 CrPC. 2. That the medical evidence has not supported the complainant's statement as there was no injury on her head and the injuries on other parts of her body were simple in nature. 3. That the complainant has not examined her mother, who could be an important and key witness. 4. That most of the prosecution witnesses are interested witnesses and their testimony cannot be relied upon to convict the non-applicants. 5. That friends of the complainant have not been examined which creates a dent in the prosecution case. 6. That the prosecution has failed to prove the offence under Section 498A read with Section 323 IPC beyond reasonable doubt. 3. Shri Rajeev Shrivastava, learned counsel appearing for the applicant/complainant would submit that the learned trial Magistrate is absolutely wrong and not justified in acquitting non-applicant No. 1 Arun Kashyap of the offence under Section 498A IPC. 6. That the prosecution has failed to prove the offence under Section 498A read with Section 323 IPC beyond reasonable doubt. 3. Shri Rajeev Shrivastava, learned counsel appearing for the applicant/complainant would submit that the learned trial Magistrate is absolutely wrong and not justified in acquitting non-applicant No. 1 Arun Kashyap of the offence under Section 498A IPC. He would further submit that the contradictions and omissions are of trivial nature and, therefore, by recording the finding of acquittal, overlooking the material evidence, manifest illegality has been committed by the trial Magistrate. Therefore, the judgment of trial Magistrate acquitting non-applicant No. 1/husband deserves to be set aside. 4. On the other hand, Shri San jay Patel and Shri Aditya Sharma, learned counsel appearing for non-applicants No. 1 and 2, respectively would support the impugned judgment of acquittal. 5. In order to comprehend the challenge to the attack made to the judgment of acquittal, it would be profitable to have a quick look over the legal parameters laid down by their Lordships of the Supreme Court for interfering with the judgments of acquittal. 6. In Bindeshwari Prasad Singh alias B.P. Singh and others Vs. State of Bihar (Now Jharkhand) and another, AIR 2002 SC 2907 , the Supreme Court has clearly held that the High Court should not re-appreciate the evidence on record and come to a different conclusion by interfering in a revision with the order of acquittal except in cases where the interest of public justice requires interference for the correction of a manifest illegality or the prevention of gross miscarriage of justice. Paragraph 12 of the decision states as under: "12. We have carefully considered the material on record and we are satisfied that the High Court was not justified in re-appreciating the evidence on record and coming to a different conclusion in a revision preferred by the information under Section 401 of the Code of Criminal Procedure, Sub-section (3) of Section 401 in terms provides that nothing in Section 401 shall be deemed to authorize a High Court to convert a finding of acquittal into one of conviction. The aforesaid sub-section, which places a limitation on the powers of the revisional Court, prohibiting it from convert a finding of acquittal into one of conviction, is itself indicative of the nature and extent of the revisional power conferred by Section 401 of the Code of Criminal Procedure. The aforesaid sub-section, which places a limitation on the powers of the revisional Court, prohibiting it from convert a finding of acquittal into one of conviction, is itself indicative of the nature and extent of the revisional power conferred by Section 401 of the Code of Criminal Procedure. If the High Court could not convert a finding of acquittal into one of the conviction directly, it could not do so indirectly by the method of ordering a retrial. It is well settled by a catena of decisions of this Court that the High Court will ordinarily not interfere in revision with an order of acquittal except in exceptional cases where the interest of public justice requires interference for the correction of a manifest illegality or the prevention of gross miscarriage of justice. The High Court will not be justified in interfering with an order of acquittal merely because the trial Court has taken a wrong view of the law or has erred in appreciation of evidence. It is neither possible nor advisable to make an exhaustive list of circumstances in which exercise of revisional jurisdiction may be justified, but decisions of this Court have laid down the parameters of exercise of revisional jurisdiction by the High Court under Section 401 of the Code of Criminal Procedure in an appeal against acquittal by a private party. (See AIR 1951 SC 196 : D. Stephens vs. Nosibolla; AIR 1962 SC 1788 : K.C. Reddy vs. State of Andhra Pradesh; (1973) 2 SCC 583 : Akalu Ahir and other vs. Ramdeo Ram; AIR 1975 SC 1854 : Pakalapati Narayana Gajapathi Raju and others vs. Bonapalli Peda Appadu and another and AIR 1968 SC 707 : Mahendra Pratap Singh vs. Sarju Singh)" 7. Thereafter, in Venkatesan Vs. Rani and another (2013) 14 SCC 207, the Supreme Court, considering its earlier decision in paragraphs 8 and 9, clearly laid down as to cases in which the High Court should interfere with the finding of acquittal. Paragraphs 8 and 9 of the decision state as under: "8. Specifically and for the purpose of a detailed illumination on the subject, the contents of paras 8 and 10 of the judgment in Akalu Ahir v. Ramdeo Ram, (1973) 2 SCC 583 , may be usefully extracted below: (SCC pp. Paragraphs 8 and 9 of the decision state as under: "8. Specifically and for the purpose of a detailed illumination on the subject, the contents of paras 8 and 10 of the judgment in Akalu Ahir v. Ramdeo Ram, (1973) 2 SCC 583 , may be usefully extracted below: (SCC pp. 587-88) "8....This Court, however, by way of illustration, indicated the following categories of cases which would justify the High Court in interfering with a finding of acquittal in revision: (i) Where the trial court has no jurisdiction to try the case, but has still acquitted the accused; (ii) where the trial court has wrongly shut out evidence which the prosecution wished to produce; (iii) where the appellate court has wrongly held the evidence which was admitted by the trial court to be inadmissible; (iv) where the material evidence has been overlooked only (either) by the trial court or by the appellate court; and (v) where the acquittal is based on the compounding of the offence which is invalid under the law. These categories were, however, merely illustrative and it was clarified that other cases of similar nature can also be properly held to be of exceptional nature where the High Court can justifiably interfere with the order of acquittal. * * * 10. No doubt, the appraisal of evidence by the trial Judge in the case in hand is not perfect or free from flaw and a court of appeal may well 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 retrial. It is unfortunate that a serious offence inspired by rivalry and jealousy in the matter of election to the office of village Mukhia, should go unpunished. But that can scarcely be a valid ground for ignoring or for not strictly following the law as enunciated by this Court. 9. The observations in para 9 in Vimal Singh v. Khuman Singh, (1998) 7 SCC 223 , would also be apt for recapitulation and, therefore, are being extracted below: (SCC pp. 226-27) "9. But that can scarcely be a valid ground for ignoring or for not strictly following the law as enunciated by this Court. 9. The observations in para 9 in Vimal Singh v. Khuman Singh, (1998) 7 SCC 223 , would also be apt for recapitulation and, therefore, are being extracted below: (SCC pp. 226-27) "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 evidence which 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. Sub-section (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." 8. Thus, after having ascertained the legal position with regard to scope of interference in a revision with the order of acquittal, reverting back to the facts of the instant case, the question that falls for consideration is whether in recording the judgment of acquittal, material evidence have been overlooked by the trial Court by which there is a manifest Illegality or there is a gross miscarriage of justice which needs to be corrected by this Court. 9. 9. The trial Court has considered in minute detail the evidence of the witnesses examined by the prosecution including the medical evidence and has found that the complainant's mother, who could be an important and key witness of the prosecution, was not examined. Naturally, the mother, after marriage of her daughter, is very close to her daughter and, therefore, she ought to have been examined to inspire confidence in favour of the prosecution case. Non-examination of the mother of the complainant creates a dent in the prosecution case and there is no explanation offered on behalf of the prosecution as to why the mother was not examined in the instant case to prove its case. Apart from this, the medical evidence records that there was no injury on the head of the complainant as alleged by her in her statement. The other witnesses are most related witnesses to which the trial Magistrate did not find favour and did not accept their testimony to prove the case against non-applicant No. 1/husband. Considering the statement of Sub-Inspector Meena Sahu (PW-4) and looking to the entire facts and circumstances of the case and considering the further fact that initially the instant revision was filed by the complainant against her mother-in-law and sister-in-law also, but, later on, during the pendency of the revision, their names were deleted by her from the array of cause-title, I do not consider it a fit case where this Court should re-appreciate the entire evidence on record or it is not a case where the view taken by the trial Magistrate is so arbitrary or bears manifest error requiring interference taking into consideration the parameters laid down by their Lordships of the Supreme Court in Bindeshwari Prasad Singh case AIR 2002 SC 2907 (supra) and Venkatesan case (2013) 14 SCC 207 (supra). It is also not a case where finding of acquittal can be converted into that of conviction or the case can be directed for re-trial. 10. As a fall out and the consequence of the aforesaid discussion, the revision is held to be devoid of merit and is, therefore, dismissed. Application dismissed.