Saleha Arif Shaikh vs State Of Gujarat & Anr

Hasmukh D. Suthar, J

By way of present revision application under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 (for short "CrPC"), the applicant has prayed for quashing and setting aside of the judgment and order dated 27.11.2008 rendered by learned Metropolitan Magistrate, Court No.18 Ahmedabad in Criminal Case No.2246 of 2005.

Heard learned advocates for the respective parties.

It is the case of the applicant that the applicant is the original complainant who lodged an FIR with Naroda Police Station against respondent No.2 for the offences punishable under Sections 323, 294(B) and 506(2) of the Indian Penal Code and Section 135(1) of the Bombay Police Act. Pursuant thereto, the police investigated the matter and filed a chargesheet against respondent No.2 for the aforesaid offences. Thereafter, the learned Magistrate framed charge below Exh.2, which came to be denied by the accused below Exh.3. In support of the prosecution case, five witnesses came to be examined, including the petitioner below Exh.4 and the husband of the petitioner below Exh.6, and documentary evidence such as the complaint below Exh.5, scene of offence panchnama below Exh.9 and recovery panchnama of the weapon below Exh.11 also came to be produced on record. Thereafter, the further statement of the accused came to be recorded under Section 313 of the Code of Criminal Procedure, 1973, wherein the accused submitted a written explanation but neither examined himself nor any other witness in defence. Upon hearing both sides, the learned Trial Court was pleased to acquit the accused vide judgment and order dated 27.11.2008 passed in Criminal Case No.2246 of 2005 by the learned Metropolitan Magistrate Court No.18. Being aggrieved and dissatisfied with the said order of acquittal, the petitioner has preferred the present Revision Application.

Learned advocate for the applicant submitted that the learned Trial Court erred in acquitting the accused despite clear oral and documentary evidence on record, including the evidence of the complainant at Exh.4, her husband at Exh.6 and the recovery panchnama of the weapon below Exh.11. It was submitted that the Trial Court wrongly presumed the complaint to be false merely because the accused had filed a complaint against the husband of the petitioner. Learned advocate further submitted that the evidence on record clearly established that the accused had harassed and assaulted the petitioner and, therefore, the findings of the Trial Court that there was delay in lodging the complaint and that the prosecution had failed to prove the case beyond reasonable doubt are erroneous. It was, therefore, urged that the impugned judgment and order be quashed and set aside.

Learned advocates for the respondent No.2 submitted that the learned Trial Court has rightly appreciated the oral as well as documentary evidence on record and has rightly acquitted the accused by giving cogent and valid reasons. It was submitted that there were material contradictions and inconsistencies in the evidence of the complainant and other witnesses and that there was unexplained delay in lodging the complaint. Learned advocate further submitted that no independent witness was examined and the prosecution failed to establish the alleged incident beyond reasonable doubt. It was also submitted that the complaint was filed only as a counterblast to the complaint lodged by the accused against the husband of the petitioner. Therefore, it was urged that no interference is required in the well-reasoned order of acquittal passed by the learned Trial Court.

Having heard the learned advocates appearing for the respective parties and after perusing the record, it appears that the learned Trial Court has passed the impugned order after properly appreciating the evidence produced on record and keeping in view the judgment passed by the Hon'ble Apex Court in the case of Amit Kapoor v. Ramesh Chander, (2012) 9 SCC 460, wherein it has been held that the scope of revision is limited.

Even upon examining the reasons assigned by the learned Trial Court, it appears that, as per the case of the prosecution, the alleged incident took place on 14.11.2005 and the second incident took place on 15.11.2005, whereas the complaint came to be filed after a delay of 28 hours and the said delay has not been properly explained. Not only that, but two eye-witnesses turned hostile and did not support the version of the complainant. As per the case of the prosecution, neither the complainant nor the eye-witness, Laxman Babubhai, has fully supported the case of the prosecution and, upon perusal of the evidence, it appears that certain improvements were made during the course of recording evidence. The learned Trial Court has taken note of the aforesaid facts. Not only that, but it also appears that the accused persons have filed a case against the husband of the complainant for the offence punishable under Section 307 of the Indian Penal Code, which is pending adjudication before the learned Sessions Judge. Therefore, no error, much less any jurisdictional error, can be said to have been committed by the learned

The revisional jurisdiction can be exercised where there is a palpable error or non-compliance with the provision of law and where the decision is completely erroneous or where judicial discretion is exercised arbitrarily. Herein, if the reasons assigned by the learned trial Court are examined, it appears that the learned trial Court has already appreciated the facts and findings of fact are not to be upset unless they are found to be perverse. Findings of fact are not to be substituted keeping in mind the ratio of the Hon'ble Supreme Court in the case of Amit Kapoor (Supra). As no perversity is found in the reasons assigned by the learned trial Court and as the learned trial Court has properly assigned reasons and recorded findings based on the evidence led before it, no interference at the hands of this Court in exercise of revisional jurisdiction is required.

It would be appropriate to refer to the decision of the Hon'ble Supreme Court in the case of Malkeet Singh Gill vs. State of Chhatisgarh reported in (2022) 8 SCC 204 wherein the Hon'ble Supreme Court held that Section 397/401 CrPC vests jurisdiction for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of such inferior Court. The object of the provision is to set right a patent defect or an error of jurisdiction or law. There has to be a well-founded error which is to be determined on the merits of the individual case. It is also well settled that while considering the same, the Revisional Court does not dwell at length upon the facts and evidence of the case so as to reverse those findings. It is a settled legal proposition that if the Courts below have recorded findings of fact, the question of reappreciation of evidence by the Revisional Court does not arise unless such findings are found to be totally perverse.

In wake of aforesaid conspectus, present revision application fails and stands dismissed. Rule is hereby discharged. Interim relief if any granted earlier stands vacated forthwith.