Asia Sultana vs Mohd. Arshad & The State Of A.P.

Dr Y. Lakshmana Rao, J

The Revision has been preferred under Section 397 and 401 of Code of Criminal Procedure, 1973 (for brevity ‘the Cr.P.C’) against the judgment dated 23.09.2008 in C.C.No.646 of 2004 passed by the learned II Additional Judicial Magistrate of I Class, Eluru, acquitting the accused of the offence punishable under Section 498-A and 506 of the Indian Penal Code, 1860 (for short ‘the I.P.C.,’) under Section 248(1) of ‘the Cr.P.C.’

I have heard the arguments of the learned counsel for the revisionist and the learned Assistant Public Prosecutor.

Sri Bodduluri Madhu, the learned counsel for the petitioner, while reiterating the grounds of the revision, submitted that the learned Trial Court erred in failing to appreciate the consistent testimonies of P.Ws.1 to 6, which clearly established that the Respondent No.1 subjected the Petitioner to cruelty and harassment under Section 498-A of ‘the I.P.C.,’ by demanding Rs.5,00,000/-. Furthermore, the Trial Court disregarded material evidence, including the love letters marked as Ex.P2 to P12, which demonstrated the Respondent No.1’s deception and false promises of marriage, leading the Petitioner into a fraudulent relationship. The learned Trial Court also overlooked the fact that the Respondent No.1 committed an offence under Section 376 of ‘the I.P.C.,’ by perpetrating sexual assault on the Petitioner, when she was a minor and subsequently agreeing to marry her to evade legal consequences, only to later abandon her. The findings that Section 498-A of ‘the I.P.C.,’ was not attracted are erroneous, given the overwhelming evidence of harassment and financial coercion. The judgment is tainted with legal infirmities and ought to be revised to rectify the grave miscarriage of justice.

Thoughtful consideration is bestowed on the arguments advanced by the learned Counsel for both sides. I have perused the entire record.

Now the point for consideration is:

“Whether the judgment in C.C.No.646 of 2004 dated 23.09.2008, passed by the learned II Additional Judicial Magistrate of I Class, Eluru, is correct, legal, and proper with respect to its finding, sentence, or judgment, and there are any material irregularities? And to what relief?”

It is apposite to refer the Hon’ble Apex Court in Bindeshwari Prasad Singh v State of Bihar (2002) 6 SCC 650 wherein at Paragraph Nos.12 & 13 it is held 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. 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 re-trial. 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.

... In the absence of any legal infirmity either in the procedure or in the conduct of the trial, there was no justification for the High Court to interfere in exercise of its revisional jurisdiction. It has repeatedly been held that the High Court should not re-appreciate the evidence to reach a finding different from the trial Court. In the absence of manifest illegality resulting in grave miscarriage of justice, exercise of revisional jurisdiction in such cases is not warranted.”

The Hon’ble Supreme Court in D Stephens v Nosibolla AIR 1951 SC 196 at Paragraph No.10 held as under:

“The revisional jurisdiction conferred on the High Court under S. 439, Cr.P.C., is not to be lightly exercised, when it is invoked by a private complainant against an order of acquittal, against which the Govt. has o right of appeal under S. 417. It could be exercised only in exceptional cases where the interests of public justice require interference for the correction of a manifest illegality, or the prevention of a gross miscarriage of justice. This jurisdiction is not ordinarily invoked or used merely because the lower court has taken a wrong view of the law or mis-appreciated the evidence on record.”

The Hon’ble Apex Court in K Chinnaswamy Reddy v State of AP AIR 1962 SC 1788, at Paragraph No.7 held as under:

“7. 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 in our opinion be exercised by the High Court only in exceptional cases, when there is some glaring defect in the procedure or there is a manifest error on a point of law and consequently there has been a flagrant miscarriage of justice. Sub-section (4) of S. 439 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 and it is only in exceptional cases that this power should be exercised. It is not possible to lay down the criteria for determining such exceptional cases which would cover all contingencies. We may, however, indicate some cases of this kind which would in our opinion justify the High Court in interfering with a finding of acquittal in revision. These cases may be: where the trial court has no jurisdiction to try the case but has still acquitted the accused, or where the trial court has wrongly shut out evidence which the prosecution wished to produce. or where the appeal court has wrongly held evidence which was admitted by the trial court to be inadmissible, or where material evidence has been overlooked either by the trial court or by the appeal court, or where the acquittal is based on a compounding of the offence, which is invalid under the law. These and other cases of similar nature can properly be held to be cases of exceptional nature, where the High Court can justifiably interfere with an order of acquittal; an in such a case it is obvious that it cannot be said that the High Court was doing indirectly what it could not do directly in view of the provisions of S. 439 (4). We have, therefore, to see whether the order of the High Court setting aside the order of acquittal in this case can be upheld on these principles.”

To prove the guilt of the Respondent No.1/Accused the prosecution had examined P.Ws.1 to 7 and got marked Ex.P1 to P3. On behalf of the Respondent No.1 Ex.D.1 to D.7 were marked. As per the version of P.W.1 while she was studying intermediate at St. Theresa College, Eluru, the Respondent No.1 made friendship with her and later he invited the Petitioner to his house on the pretext that he was celebrating his friend's birthday. Believing those words the Petitioner went to his house and found the absence of the parents. The Respondent No.1 made her to believe that he would marry the Petitioner and ravished her. Later, at the intervention of the elders, the Respondent No.1 married the Petitioner and one week thereafter he started harassing her for dowry.

Petitioner and Respondent No.1 fell in love while they were in minority. The parents of Respondent No.1 had not attended the marriage. The Petitioner and Respondent No.1 lived together for seven days only after their marriage, at the house of grandfather of the Petitioner. The marriage was performed on 27.04.2003. The Respondent No.1 got issued a legal notice for divorce to the Petitioner on 26.06.2003. The Petitioner gave birth to a female child on 29.07.2003. She gave report against the Respondent No.1 and others for the offence punishable under Section 324 and 326 of 'the I.P.C.,' and the case was pending on the file of Mobile Court, Eluru in C.C.No.53 of 2006. The Respondent No.1 filed O.S.No.171 of 2003 on the file of Principal Senior Civil Judge, Eluru for dissolution of marriage, but the same was dismissed.

It is the evidence of Petitioner as P.W.1 that during the seven days of living together, the Respondent No.1 demanded the Petitioner to pay dowry of Rs.2,00,000/- or Rs.5,00,000/-, and when the Petitioner expressed her inability, the Respondent No.1 cut the hand of the Petitioner with a blade and went away. As per the evidence of Respondent No.1 as D.W.1, on 03.05.2003 P.Ws.2, 3 and others beat him indiscriminately with iron rods and he was admitted in the hospital, to that effect a wound certificate vide Ex.D.5 is marked. The Respondent No.1 testified that he was unable to bear the harassment of the Petitioner and her family members and he gave Talak. Ex.P2 bunch of letters exchanged in between the Petitioner and the Respondent No.1. In those letters there is no reference about the Respondent No.1 demanding dowry.

The learned Trial Court observed that inspite of self-serving statements of P.Ws.1 to 3, there was no independent evidence that the Respondent No.1 demanded dowry from the Petitioner. P.Ws.5 and 6 who are neighbours of Petitioner stated that they had no personal knowledge about demand of dowry. The learned Trial Court observed that in the evidence of P.Ws.1 to 4 there were several developments regarding demand of dowry. They had also not stated before the Police about the alleged demand of dowry.

The learned Trial Court observed that as the Petitioner and Respondent No.1 lived together only for a period of one week and within that period the allegation that the Respondent No.1 demanded dowry from the Petitioner is unbelievable. Whatever the incidents occurred prior to the marriage in between the Petitioner and the respondent No.1 cannot be considered to determine charge under Section 498-A of ‘the I.P.C.’ As the record doesn’t disclose the concrete evidence that the Petitioner had committed an offence under Section 498-A of ‘the I.P.C.,’ the learned Trial Court rightly did not believe the uncorroborated version of the Petitioner and acquitted the Respondent No.1. The learned Trial Court rightly observed that there were several omissions, developments and exaggerations in the evidence of P.Ws.1 to 6. The prosecution story was unbelievable and insufficient to drive home the guilt of the Respondent No.1 for the offence under Section 498-A of ‘the I.P.C.’ There were no irregularities let alone material irregularities. There was no misreading of evidence. There were no perverse findings. There was no flagrant miscarriage of justice. The learned Trial Court had rightly appreciated the evidence and found the respondent No.1 not guilty for the offences charged. There are no grounds to interfere with the judgment of acquittal. For the above reasons, this Criminal Revision Case is liable to be dismissed.

In the result, the Criminal Revision Case is dismissed. No order as to costs.

As a sequel, interlocutory applications, if any pending, shall stand closed.