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2016 DIGILAW 180 (MP)

Gayatri Bai v. Pannalal Sindhiya

2016-03-01

C.V.SIRPURKAR

body2016
ORDER 1. This criminal revision is directed against judgment dated 30.11.2006 passed by the Court of Chief Judicial Magistrate, Mandla, in Criminal Case No.67/2003; whereby accused persons/respondents Pannalal, Gurukhoolal, Shanti Bai, Kamla Bai and Mona were acquitted of the charge under section 498A of the Indian Penal Code. 2. The prosecution case in nutshell was that victim Gayatri Bai married accused/respondent No.1 Pannalal in the year 2001. The remaining respondents are relatives of Pannalal. Respondent Pannalal and his family members kept victim Gayatri Bai well for a few days; however, after that they started demanding Rs.25,000/- and a two wheeler by way of dowry and started to beat her up for aforesaid purpose. She was also pressurized into going in for abortion. Subsequently, she instituted a written report with police station Mandla on 10.6.2002; whereon, the final report was filed against the accused persons/respondents. 3. After the trial, learned Chief Judicial Magistrate Mandla acquitted the accused persons extending benefit of doubt. The grounds on which the accused persons were acquitted may briefly be stated as hereunder : (1) There were discrepancies between the written report (Ex.P-1) and the Court statement of victim Gayatri Bai. She has denied in the Court statement that she had lodged a written report and stated that she had only lodged an oral report in the police station; whereas investigating officer Durgesh Nandini (PW5) states that the victim did not lodge any oral report but had only lodged a written report. (2) Victim Gayatri Bai has admitted in her cross-examination that she stayed in her matrimonial home for a period of 7 months after marriage that is to say she did not visit her matrimonial home after November, 2001. She had lodged first information report on 10.6.2002. There is no explanation as to why the first information report was not lodged between November, 2001 and June, 2002. (3) The first information report was lodged on 10.6.2002 but the medical examination was conducted upon the victim on 10.5.2002; wherein, she was found heve suffered two simple injuries. There is no explanation as to how the medico-legal examination was conducted a month prior to the lodging of first information report. (3) The first information report was lodged on 10.6.2002 but the medical examination was conducted upon the victim on 10.5.2002; wherein, she was found heve suffered two simple injuries. There is no explanation as to how the medico-legal examination was conducted a month prior to the lodging of first information report. (4) Even if it is assumed for the sake of argument that in the MLC report, the date of 10.5.2002 was mentioned instead of 10.6.2002 by mistake, it is not clear as to how such injuries could have been caused by accused Pannalal because the victim never visited her matrimonial home after November, 2001. (5) Ganpat Lal (PW2) and Sevti Bai (PW3), father and mother of the victim respectively, have been examined. Ganpat Lal has stated that he had no first-hand knowledge of dowry harassment and Sevti Bai failed to state anything regarding dowry harassment in her examination-in-chief. Consequently, she had to be declared hostile. (6) PW8 Narendra Kumar, brother of the victim, had gone out of his way to denounce accused No.1 Pannalal and has stated that he had contracted second marriage; whereas, it is not the case of the prosecution at all that the accused No.1 had performed another marriage. 4. Thus, we may see that trial Court had given cogent reasons for declining to place reliance upon the testimony of prosecution witnesses. 5. During the course of argument, the learned counsel for the revision petitioner has stated that accused persons have been acquitted simply because there was error in mentioning the date in medico-legal report; however, that is not the case. There are many other weightier reasons for refusal of learned trial Court to accept the evidence of the prosecution witnesses. 6. In any case, the contention of the learned counsel for the petitioner revolved around mis-appreciation of evidence by learned trial Court. It may be seen that this criminal revision was filed much prior to the date on which the proviso to section 372 of the Code of Criminal Procedure came into force on 31.12.2009. Thus, the only legal course available to the victim of a crime against order of acquittal in a case instituted on a police-report was to have filed this criminal revision against acquittal. 7. In this regard it would be apposite to refer to the position of law. Thus, the only legal course available to the victim of a crime against order of acquittal in a case instituted on a police-report was to have filed this criminal revision against acquittal. 7. In this regard it would be apposite to refer to the position of law. On consideration of the authoritative pronouncement made by the apex Court in the cases of D. Stephens v. Nosibolla [(1951)1 SCR 284], Logendranath Jha and others v. Polai Lal Biswas [(1951) SCR 676], K. Chinaswamy Reddy v. State of Andhra Pradesh [ (1963)3 SCR 412 ], Mahendra Pratap v. Sanju Singh and another [ (1968)2 SCR 287 ], Janta Dal v. H.S. Choudhary [ (1992)4 SCC 305 ], Satyajeet Banerjee v. State of West Bengal [ (2005)1 SCC 115 ] and Johar v. Mangal Prasad [ AIR 2008 SC 1165 ], following principles with regard to scope and ambit of powers of the High Court while adjudicating a criminal revision preferred by aggrieved person against a judgment of acquittal, may be culled out. 8. It is true that it is open to a High Court in revision to set aside an order of acquittal even at the instance of private parties, though the State may not have thought fit to appeal; but this jurisdiction should be exercised by the High Court only in exceptional cases. The High Court while exercising its revisional jurisdiction under sections 397 and 401 of the Code of Criminal Procedure, exercises a limited power. Its jurisdiction to entertain a revision application, although is not barred but is severally restricted, particularly when it arises from a judgment of acquittal. Nothing in section 401 is deemed to authorize a High Court to convert a finding of acquittal into one of conviction. So the High Court, at best, can set aside the judgment of acquittal and order a retrial. Sub-section (1) of section 401 forbids a 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. This places limitations on the power of the High Court to set aside a finding of acquittal in revision. This places limitations on the power of the High Court to set aside a finding of acquittal in revision. The High Court has to be alive to the fact that by ordering a retrial, the dice is heavily loaded against the accused because however much the High Court may caution the Sub-ordinate Court, it is always difficult to re-weigh the evidence ignoring the opinion of the High Court. Thus, it is only in exceptional cases that this power should be exercised. 9. The High Court may exercise powers in exceptional cases : (1) where the interests of public justice requires interference for the correction of a manifest illegality for the prevention of gross miscarriage of justice; (2) where there is some glaring defect in the procedure, like want of jurisdiction or there is a manifest error on a point of law and consequently there has been a flagrant miscarriage of justice. (3) to correct miscarriage of justice arising from misconception of law, irregularity of procedure, neglect of proper precaution or apparent harshness of treatment. (4) where the Court had shut out some material evidence which was admissible or any relevant evidence has been overlooked or where the Court attempted to take into account evidence which was not admissible, leading to gross and flagrant miscarriage of justice. 10. The High Court may not exercise the power : (1) where it is required to enter into merits of the matter by analyzing the depositions of witnesses examined on behalf of the prosecution and re-appreciate the whole evidence for substituting one possible view by another; (2) by merely characterizing the judgment of the trial Court as "perverse" and "lacking in perspective, without assigning reasons therefor; (3) simply because the lower Court has taken a wrong view of the law without causing flagrant miscarriage of justice; (4) where the Court below has misappreciated the evidence on record without making the judgment perverse; or (5) to upset pure findings of fact based on the trial Court's appreciation of the evidence in the case. 11. The aforesaid list of circumstances where the High Court may or may not exercise revisional jurisdiction at the instance of the aggrieved person in respect of finding of acquittal, is enumerative and not exhaustive. 12. 11. The aforesaid list of circumstances where the High Court may or may not exercise revisional jurisdiction at the instance of the aggrieved person in respect of finding of acquittal, is enumerative and not exhaustive. 12. Applying aforesaid principles to the case at hand, we find that learned counsel for the petitioner has not been able to point out any manifest error of law on the part of learned trial Judge leading to miscarriage of justice. It cannot be said that any relevant evidence has not been considered and irrelevant material has been taken into consideration. Learned trial Court has analyzed the evidence of all prosecution witnesses and has recorded reasons for not placing reliance upon them. In the revisional jurisdiction against acquittal, the High Court is not supposed to enter into the merits of the matter and reappreciate the whole evidence and substitute one possible view for another. The findings recorded by learned trial Court cannot be said to be perverse. This is not a one of those exceptional cases where interest of public justice requires interference in finding of acquittal for correction of a manifest illegality or for prevention of a gross miscarriage of justice. 13. Even if we assume for the sake of arguments that learned trial Court had mis-appreciated the evidence on record, the High Court in the exercise of revisional jurisdiction cannot reverse pure findings of fact on which the acquittal was based. The High Court has to be conscious of the fact if finding of acquittal is set aside and retrial is ordered, it would be difficult for the trial Court to re-appreciate the evidence ignoring the opinion of the High Court. 14. In aforesaid view of the matter, no case is made out for interfering with the judgment of acquittal. 15. Consequently, this revision against acquittal filed on behalf of aggrieved person, is dismissed. Manhar Dixit for applicant; Ashish Pandey for respondents No.1 to 5; Ramesh Kushwaha, Panel Lawyer for respondent No.6/State.