Ms. Sushsma vs Yoganand, Premalatha, Balagurunathan and State

R. Mala, J.—The Crl. R.C. is filed against the order dated 28.5.2007 in C.C. No. 17573 of 2004, on the file of the Chief Metropolitan

Magistrate, Chennai-8, acquitting Respondents 1 and 3/A1 and A3 from the offence u/s 498-A IPC and Section 4 of the Dowry Prohibition Act

and Respondent 2/A2 from Section 498-A and 406 IPC and Section 4 of the Dowry Prohibition Act.

The skeleton of the private complaint is as follows:

The marriage between P.W.1 Sushma and A1 Yoganand was performed on 23.5.2002. At the time of marriage, 3 bed room flat at T. Nagar

consisting of 1700 Sq. FT, worth Rupees 35 lakhs as on the date of complaint, one plot in Palavakkam with lands of an extent of one ground

worth Rs. 5 lakhs as on the date of complaint, gold jeweler totaling 570 grams worth Rs. 3.25 lakhs, diamond jeweler (diamond necklace,

diamond ear rings) etc., totaling 5.16 carat worth Rs. 2 lakhs (which was given to A2 on the occasion of marriage and retained by her), Rs. 4

lakhs in Fixed Deposit, Federal Bank shares and LIC Policy worth Rs. 2.5 lakhs and silver items, wrist watches and clothes, to the value of about

Rs. 3,30,000/-, were given and the marriage was performed at the cost of Rs. 10 lakhs and after marriage, both P.W.1 and A.1 were residing at

their parental home and then they went to A.1''s house where A.2 and A.3 demanded the jewels and other properties for being transferred in

A.3''s name and they have also demanded Rs. 10 lakhs for purchasing a house and settle it in the name of A.1''s sister. Then, A.1 left for America

on 13.6.2002 along with P.W.1. At that time, A.1 ill-treated P.W.1 and on 9.10.2002, he demanded Rs.10 lakhs as dowry and he strangulated

her, due to which, she became unconscious, but he made a propaganda as if she attempted to commit suicide. On 26.12.2002, they have returned

back to Chennai for attending marriage of her sister on 2.2.2002, and A-2 borrowed P.W.1''s diamond necklace for wearing in the marriage and

she has not returned back the same. On 9.2.2003, A1 went to States and at that time, he demanded P.W.1 to transfer the immovable property in

the name of A.3 and hand over all the jewels and other Streedhana properties given to her and only on giving the same, she could be permitted to

go along with A.1 and reside with her husband. On 23.5.2003, on the wedding day, when she made a call to her husband, at that time, she was

abused by her husband and therefore, a Panchayat was convened through P.W.5, but A.1 refused to attend the same, but he filed a petition for

divorce and hence, the revision Petitioner/P.W.1 preferred a private complaint to punish the Respondents 1 to 3 for the offences under Sections

498-A and 406 IPC and also u/s 4 of the Dowry Prohibition Act.

The trial Court, after taking the private complaint on file and since the offences are cognizable, furnished the copies of documents to the

Respondents 1 to 3/accused and since they pleaded not guilty, the trial Court examined P.Ws.1 to 6 and marked Exs.P-1 to P-10 and acquitted

Respondents 1 to 3/accused stating that the prosecution has not proved the private complaint, which is a counter-blast of the divorce petition filed

by her husband/A1, against which, the present Crl.R.C. as been preferred by the revision Petitioner/P.W.1/complainant.

Challenging the impugned order of acquittal, learned Senior Counsel appearing for the revision Petitioner/P.W.1/complainant submitted that the

trial Court has not properly appreciated the evidence and dismissed the case stating that there is a delay of two years in preferring the complaint.

Since it is a matrimonial issue, the revision Petitioner/P.W.1/complainant wanted to pacify her husband and in-laws and went to join with them, and

there was mediation convened by the elders and after failure of the medication, she preferred the complaint. That factor has not been considered

by the trial Court. The trial Court has also not considered Ex.P-2 e-mail addressed by A.1. Learned Senior Counsel further submitted that the

evidence of P.Ws.1 and 2 clearly proved the demand of dowry and the same has not been considered by the trial Court. The evidence of P.Ws.1

to 5 proved that the Respondents 1 to 3/accused are guilty of the offence under Sections 498-A and 406 IPC. Learned Senior Counsel appearing

for the revision Petitioner/P.W.1/complainant relied upon the decision of the Apex Court reported in K. Ramachandran Vs. V.N. Rajan and

Another, and submitted that if the trial Court ignored any important piece of evidence or it has chosen not to appreciate the same, or had illegally

permitted any evidence to come on record, or there was some serious defects in the trial affecting the merits of the case, then the Revisional Court

can interfere with the order of acquittal. He further submitted that the trial Court in paragraph 12 of the impugned order, has come to the

conclusion that the ingredients of Section 498-A IPC, are only cruelty against the body of a person and not mental cruelty and prayed for setting

aside the impugned order of acquittal and allow the Crl. R.C.

Learned Counsel appearing for the Respondents 1 to 3/accused submitted that there is no illegality or irregularity or perversity in the impugned

order of acquittal and as per the dictum of the Apex Court reported in Kaptan Singh and others Vs. State of M.P. and another, , the High Court

should not interfere with the order of acquittal unless there is a manifest illegality or grave miscarriage of justice and therefore, there is no reason for

interfering with the findings of the trial Court, acquitting the Respondents 1 to 3/accused. He further submitted that the evidence of P.Ws.1 to 4

who are all relatives, i.e. P.W.2 is the father of P.W.1and P.W.3 is the brother of P.W.1 and P.W.4 is the maternal uncle of P.W.1 and so, the

evidence of P.Ws.1 to 4 has been properly considered by the trial Court and he prayed for dismissal of Crl. R.C.

Heard the learned Government Advocate (Crl. Side) appearing for the fourth Respondent-Police on the above aspects.

Considering the rival submissions made by learned Counsel on either side and the materials available on record, it is seen that P.W.1 got

married to the second Respondent/A1 on 23.5.2002 and it is the case of the prosecution through P.W.1 that the properties have been given to her

during marriage. To substantiate the same, the revision Petitioner/complainant/P.W.1 filed Ex.P-3 shows that the house properties stand in the

name of P.W.1 and her sister and as per Ex.P-4, shares were sold to P.W.1, and the shares stood in the name of P.W.1 as per Ex.P-7, Fixed

Deposit receipt for Rs. 5 lakhs, is marked as Ex.P-8 and the Fixed Deposit receipt issued by Ennor Muds and Chemicals is marked as Ex.P-9.

Admittedly, no document has been filed for issuance of gold jewels, diamond jewels and silver articles.

The trial Court acquitted the accused only on the ground of delay in preferring the private complaint. Admittedly, the marriage was performed

on 23.5.2002 and P.W.1/complainant was in Chennai from 9.2.2003, but the private complaint was given only in 2004. To prove the Panchayat,

P.W.5 has been examined, but there is no independent witness examined. P.W.2 is the father of P.W.1, P.W.3 is her brother and P.W.4 is her

maternal uncle. P.W.4 stated that he received information from P.W.1 and his family and therefore, his evidence is hearsay. In such circumstances,

the delay has not been properly explained. That factor has been considered by the trial Court.

Learned Senior Counsel appearing for the revision Petitioner/P.W.1/complainant submitted that Ex.P-2 e-mail has not been considered by the

trial Court. It is true that e-mail has not been proved in accordance with law by producing any certificate to show that the same was sent by A.1.

In such circumstances, the trial Court has considered this aspect in proper perspective and hence, I am of the view that the findings of the trial

Court in respect of Ex.P-2 e-mail, do not warrant any interference.

Before going into the merits of the Crl. R.C., it has to be noted that the powers of the Revisional Court is limited. As per the decision reported

in Kaptan Singh and others Vs. State of M.P. and another, , relied on by learned Senior Counsel appearing for the revision

Petitioner/P.W.1/complainant, the High Court should not interfere with the order of acquittal unless there is manifest illegality or grave miscarriage

of justice. In the said decision, it was observed by the Apex Court as follows:

From a conspectus of the above decisions, it follows that the provisional power of the High Court while sitting in judgment over an order of

acquittal should not be exercised unless there exists a manifest illegality in the judgment or order of acquittal or there is grave miscarriage of justice.

Read in the context of the above principle of law we have no hesitation in concluding that the judgment of the trial Court in the instant case is

patently wrong and it has caused miscarriage of justice. The High Court was therefore fully justified in setting aside the order of acquittal. ...

So, it is the duty of the Court to peruse the impugned order and decide as to whether there is any miscarriage of justice or is there any

irregularity or illegality or perversity in the same.

Learned Counsel appearing for the Respondents 1 to 3/accused, relied on the judgment of the Apex Court reported in K. Ramachandran Vs.

V.N. Rajan and Another, , wherein, it was held by the Supreme Court that if the trial Court ignored any important piece of evidence or it has

chosen not to appreciate the same, or had illegally permitted any evidence to come on record, or there was some serious defects in the trial

affecting the merits of the case, then the Revisional Court can interfere with the order of acquittal.

There visional power has to be exercised by the High Court only in very exceptional cases where the High Court finds defect in the procedures

or manifest error of law resulting in flagrant miscarriage of justice. At this juncture, it is appropriate to refer the decision of the Supreme Court,

reported in Johar and Others Vs. Mangal Prasad and Another, which would show that the power of the provisional Court is very limited. In the

said decision, the Supreme Court observed as follows:

Revisional jurisdiction of the High Court in terms of Section 397 read with Section 401 of the Code of Criminal Procedure is limited. The High

Court did not point out any error of law on the part of the learned Trial Judge. It was not opined that any relevant evidence has been left out of its

consideration by the Court below or irrelevant material has been taken into consideration. The High Court entered into the merit of the matter. It

commented upon the credentialed of the Autopsy Surgeon. It sought to re-appreciate the whole evidence. One possible view was sought to be

substituted by another possible view.

The provisional Court''s power is very limited and when once the finding is perverse or there is illegality or irregularity in the view, then only the

provisional Court shall appreciate the evidence and set aside the findings of the trial Court and remit the case for re-trial.

Revisional powers can be exercised only to see that Justice is done in accordance with recognized rules of Criminal Jurisprudence. The

Powers u/s 401 Code of Criminal Procedure can be exercised where interests of Public Justice, require interference for the correction of a

manifest illegality of the prevention of a gross miscarriage of justice, notwithstanding the bar of executions contained in Section 401 Code of

Criminal Procedure, the High Court has Jurisdiction suo motu to set aside an illegal order of acquittal in exercise of the provisional powers.

The provisional Court does not interfere with the findings of fact arrived at by the Court below, unless the Courts below had overlooked

essential parts of evidence and/or acted upon inadmissible and extraneous matters. The provisional Court ought not to interfere merely because the

lower Court has taken a particular view of the evidence and that view does not comment itself to the provisional Court. High Court can interfere

only when there is a glaring mistake in the order of acquittal causing failure of justice. Interference with the order of the trial Court is not

permissible, unless the order of the trial Court is unreasonable or perverse. It cannot be gainsaid that a Court cannot act on presumptions to either

convict or acquit an accused, and Court has a duty to assess evidence led and to come to definite conclusions in this regard, where a Court

proceeds on hypothesis and arrives at hypothetical conclusions having no nexus with evidence, then a valuable right accrues in favor of the affected

party.

The provisional Court cannot refuse to go into facts where it appears to it that there has been in the Case, a gross failure of Justice, if the

findings touch any Jurisdictional requirement or takes into consideration the irrelevant facts, such a finding is not binding so as to deprive it of the

power to correct the jurisdictional failure.

The High Court cannot enter into minute details of evidence recorded by the Magistrate. The verdict on appreciation of evidence by a

Magistrate cannot be set aside on the ground of his failure to sift the evidence by separating the grain from the chaff.

Improper appreciation of evidence or record cannot be a ground for interference by the High court with the order of the trial Court. No

perversity or non-application of mind to any material aspect can be attracted to the assessment and valuation of evidence made by the Courts

below. Even though a different view is available to be drawn from the materials on record, that shall not be a ground for interference while

exercising provisional jurisdiction.

Therefore, if the findings of the trial Court are perverse, and if there is non-appreciation of the evidence or findings, which are illegal or

irregular, then only the Revisional Court has power to set aside the impugned order of acquittal and remand the case back to the trial Court for re-

trial.

In the present case, there is no perversity or illegality or irregularity in the impugned order of acquittal. Before the trial Court, the revision

Petitioner/P.W.1/complainant has not filed any scrap of paper to show that when she was in States, as well as in Chennai, before issuance of

summons in the divorce petition, she has sent a communication to her father that she was subjected to ill treatment either mentally or physically.

Admittedly, only after receipt of the summons in the divorce petition, she has preferred the complaint. Furthermore, the evidence of P.Ws.1 to 4

was properly appreciated by the trial Court, and then only, the trial Court acquitted the accused. In such circumstances, I am of the view that the

trial Court has considered this aspect and the findings of the trial Court are not perverse and there is no irregularity or infirmity or illegality in the

impugned order of acquittal passed by the trial Court. The findings of the trial Court are cogent and convincing and hence, the same does not

warrant any interference by this Court. The Crl. R.C. deserves to be dismissed.

For the foregoing reasons, the Crl. R.C. is dismissed, confirming the impugned order of acquittal passed by the trial Court. The Miscellaneous

Petition is closed.