Meharunnisa Biyi vs Abdul Rahim and The Inspector of Police

Malai Subramanian, J.—The Petitioner is the wife of one Abdul Rahim and she filed a case against her husband three others for offences under Sections 98-A IPC. and Section 4 of Dowry Prohibition Act read with Section 34 I.P.C. A case was registered by the Sub Inspector of Police. City Crime Branch in EX. Crime No. 4/93 and final report was filed against all the four accused. The III Metropolitan Magistrate, George Town Madras, who tried the case in C.C. No. 2542/1994 chose to acquit A2 to A4 and convicted the husband of the Petitioner alone for the offences under Act and sentenced him to under go rigorous imprisonment for six months and to pay a fine of Rs. 500/- for the offence u/s 498-A and in default of payment of fine to undergo one more month rigorous imprisonment for six months and to pay a fine of Rs. 2000/- for an offence u/s 4 of Dowry Prohibition Act and in default of payment of fine to undergo rigorous imprisonment for two more months and the first accused namely. Abdul Rahim was directed to undergo rigorous imprisonment for both the offences at one and the same time concurrently. As against the judgment pronounced by the learned Magistrate, the first accused namely, the husband of the Petitioner went on appeal and the VI Additional Judge, who heard the appeal in C.A. No. 103/95 acquitted the accused by setting aside the Order of conviction passed by the trial Court. Hence, this revision has been filed by the aggrieved prosecution witness No. 1.

2, The Prosecution case against the first accused husband is that 25 sovereign of jewels and a cash of Rs. 20,000/- were given to the first accused during marriage and the first accused pledged 17 sovereigns of jewels belonging to the Petitioner and spent the pledge amount and also ill-treated the Petitioner by demanding more jewels. He also demanded a further amount of Rs. 75,000/- as dowry and ill-treated on that account also.

According to the trial court, the demand of dowry and ill -treatment was proved by P. W. 1 and P.W.2. P.W.2 being the father of P.W.1 . It was the case of P. Ws.1 & 2 that though 17 sovereigns of jewels were pledged by the first accused P.W.2 redeemed the same after paying Rs. 18,000/-. This fact was corroborated by the pledged, Mr. Prakash Chand. who was examined as P.W.4. It is the case of P.W.4 that the first accused pledge one necklace, one chain and two bangles for an amount of Rs. 15.000/- and P.W.2 who is the father-in-law of the first accused paid the amount and redeemed the jewels. The trial Court believed the evidence of P.W.4 because, he is an independent witness and has no motive or mallice against the first accused to implicate him in a false case. It is the case of P. W. 1 that the first accused demanded her Thali also and in case she refused to give thali, he would pour kerosene on her and subsequently, thali was also handed over to him. P.W.3 corroborated the evidence of P. W. 1 to the extent that it was she who pledged the thali in the pawn broker shop on behalf of the first accused for an amount of Rs. 800/- and give the amount to the first accused. The trial court believed the version of P. Ws. 1 and 3. In so far as the thali episode is concerned. Therefore, according to the trial court it amounts to harrasing of P.W.1.

The Appellant Court after hearing both the parties and after going through the records discussed the evidence and held that the offence against the first accused was also not made out and therefore acquitted the accused. The persons given by the appellate Court are that there is a discrepancy with regard to the number of sovereigns between the evidence of P. Ws.l, 2 and 4. According to P.W.2, 27 sovereigns of Jewels were pledged and 15 soverings of jewels were redeemed by him whereas P.W.4''s evidence is, 16 sovereigns of jewels were pledged by the first accused and redeemed by P.W.2. This discrepancy appears to be very minor but what weighed much in the mind of the appellate Court is that P.W.4 did not produce any receipt to prove the pledge of jewels and subsequent redemption. The reason given by P.W.4 before the investigating agency appears to be that the incident took place one year prior to his examination by the police. The learned Additional Judge after going through the evidence came to a conclusion that the accused used the pledge amount only for the purpose of improving his business and according to him nowhere it was said that the amount was demanded and received by the first accused by way of dowry.

The learned Additional Judge found that P. W. 1 gave the complaint eight years after the marriage and she did not anywhere say that she was assaulted and her husband threatened to pour kerosene and burn her and also pledged 20 sovereigns of jewels and made her to starve without providing food to her and so on and in the evidence. P.W. 1 did not say all those things, but she only said that the first accused wanted money only for the purpose of doing business. In so far as the kerosene episode is concerned, she had implicated only the 4th accused and the mother-in-law of P.W. 1. Under these circumstances, only for the purpose of improving the business, the first accused demanded money from P.W. 1. There was no proof that there was any demand of dowry by the first accused. According to the learned Judge, there was no evidence to impute cruelty on the part of the first accused. According to P.W. 1. the first accused went away separately from 16.9.1991. Therefore, the learned Judge refused to believe the version of prosecution that there was a demand of 75 or 2o sovereigns of jewels in the year 1992. Since P.W. 1 did not corroborate the version given in the F.I.R.. the learned Judge decided that an offence u/s 498-A of an offence u/s 4 of Dowry Prohibition Act was not made but against the first accused also.

While going through the judgment rendered by the trial Court as well as the appellate Court, two views are possible and this Court can lake either view. Under these circumstances, merely because the other view held by the trial court can also taken in this case, the appellate order cannot be revised unless it is shown that miscarriage of justice had occurred by allowing the appeal filed by the accused No. 1 where two views are possible, the benefit only goes to the accused and on that count, the appellate order is not revisable. Even if this Court chooses to revise the order passed on appeal and restores the order passed by the trial Court, the problem is. there is an embargo in Section 401 Clause 3 of Code of Criminal Procedure and this Court has no power to convert a finding for acquittal to one of conviction. On this aspect, the relevant authority is the judgment of the Supreme Court rendered in the case of K. Chinnaswamy Reddy v. State of Andhra Pradesh and Anr. reported in K. Chinnaswamy Reddy Vs. State of Andhra Pradesh, . The Supreme Court in such a situation has held as follows:

Two contingencies arise in such a case as to the nature of the order to be passed. In the first place there may be an acquittal by the trial Court. In such a case if the High Court is justified, or principles enunciated above, to interfere with the order of acquittal in revision, the only course open to it is to set aside the acquittal and send the case back to the trial Court for retrial and there may be another type of case, namely, where the trial court has convicted the accused while the appeal court has acquitted him. In such a case, if the conclusion of the High Court is that the order of the appeal court must be set aside, the question arised whether the appeal court after admitting the statement it had ruled out or whether there should necessarily be a retrial. So far as this is concerned, it is open to the High Court to take either of the two courses. It may order a retrial or it may order the appeal court to re-hear the appeal. It will depend upon the facts of each case whether the High Court would order, the appeal Court re-hear the appeal or would order a re-trial by the trial Court. Where the entire evidence is there and it was the appeal court which ruled out the evidence that had been admitted by the trial Court, the proper course is to send back the appeal for re- hearing to the appeal Court. In such a case the order of the Trial Court would stand subject to the decision of the Appeal court on rehearing.

Under These circumstances, no purpose will be served in remitting the matter to the appellate Court for rehearing, even if it is found that the order passed by the trial Court is more apt than the Order passed by the appellate Court. Therefore, the Revision stands dismissed.