Smt. Asha Rani vs Ram Sawrup and Another

Sabina, J.—Respondent-Ram Sawrup was tried for an offence u/s 498A of the Indian Penal Code (for short ''IPC''). He was acquitted of the charge framed against him by the Sub Divisional Judicial Magistrate, Fatehabad vide judgment dated 13.8.2002. Hence, the present revision petition u/s 401 of the Code of Criminal Procedure (Cr.P.C. for short) against the order of acquittal has been filed by petitioner-Asha Rani.

The brief facts of the case, as noticed by the trial Court in para 1 of its judgment, are as under:

The present case was registered by the police when on 18.3.92 a written application was allegedly made by complainant Asha Rani wife of Ram Sarup, resident of Four Marla Colony, Fatehabad to DSP Fatehabad which was received at police station Fatehabad in due official course. It is better to cite here the contents of application dated 14.2.92 (Exhibit P1) for better appreciation of the facts:

Respectfully submitted that I Asha Rani daughter of Sh Jaswant Rai, about 25 years of age at the moment. My parents managed my marriage with Ram Sarup son of Parmanand, resident of Four Marla Colony, Fatehabad on 11.3.91. Thereafter, a child was conceived after consummation of marriage. Then my husband get the child aborted on 10.8.91. Thereafter, when second child conceived to me then I told it to my husband who asked me to improve himself much more. On the night of 21.12.91 my neck was pressed and an attempt was make to kill me. I thought it proper to live for the child. I saved myself. On 24.12.91, I came back to my parents. I have not been taken care of till now nor does he like to keep me and in case I go back, he would kill me. My parents are too serious to care for me and my child that is why you are requested that my matter may be sorted out as soon as possible so that I and my child may remain healthy and I may be able to give birth to my child....

During investigation, the accused was arrested and he was released on bail by order of the court. On completion of investigation, present challan was filed by the prosecution u/s 173 of the Cr.P.C.

Learned Counsel for the petitioner has submitted that the trial Court had erred in acquitting respondent No. 1 of the charge framed against him. In fact, in civil litigation, the factum of marriage between petitioner and respondent No. 1 has been duly established. Learned Counsel has further submitted that the application for permission to lead additional evidence was liable to be allowed as by way of the said application, petitioner wanted to place on record the judgments passed by the Civil Court.

Learned Counsel for respondent No. 1, on the other hand, has submitted that the petitioner had failed to prove on record the judgments passed in the civil litigation and, hence, the same can not be looked into. Petitioner had failed to prove her case.

In the present case, respondent No. 1 was acquitted by the trial Court on the ground that the petitioner had failed to establish that she was wife of respondent No. 1. The matter was reported to the police after unexplained delay of 2� months. The sole testimony of the petitioner without any corroboration was not liable to be believed.

In order to establish the relationship of husband and wife, between petitioner and respondent No. 1, the petitioner has now placed on record the judgment passed in Civil Suit No. 680 of 22.3.1994 decided on 12.11.1996 and the judgment passed in Civil Appeal No. 26 of 97/2000 decided on 31.8.2000 whereby the appeal filed by respondent No. 1 was dismissed. A perusal of the judgment dated 12.11.1996 (Annexure P1) reveals that the petitioner had filed a suit for permanent injunction that the defendant be restrained from contracting second marriage during the subsistence of his marriage with the petitioner. The said suit was decreed and appeal filed against the said judgment and decree was dismissed by the appellate Court. The said judgments were within the knowledge of the petitioner but the same were not proved on record by the petitioner to establish her case.

Section 391 of the Code of Criminal Procedure reads under:

Appellate Court may take further evidence or direct it to be taken-

(1) In dealing with any appeal under this Chapter, the Appellate Court, if it thinks additional evidence to be necessary, shall record its reasons and may either take such evidence itself, or direct it to be taken by a Magistrate, or when the Appellate Court is a High Court, by a Court of Sessions or a Magistrate.

(2) When the additional evidence is taken by the Court of Session or the Magistrate, it or he shall certify such evidence to the Appellate Court, and such Court shall thereupon proceed to dispose of the appeal.

(3) The accused or his pleader shall have the right to be present when the additional evidence is taken.

(4) The taking of evidence under this Section shall be subject to the provisions of Chapte XXIII, as if it were an inquiry

There is no doubt that the additional evidence can be taken by this Court in an appeal u/s 391 Cr.P.C. However, the said provision will not apply to a case in revision. This case does not warrant interference by this Court by resorting to its inherent jurisdiction. The judgments now sought to be placed on record were in the knowledge of the petitioner but were not proved on record for the reasons best known to the petitioner. Consequently, the application for permission to lead additional evidence is dismissed.

Since the petitioner had failed to establish her relationship with respondent No. 2 and had failed to explain the delay in lodging the report, the learned trial Court rightly held that, in these circumstances, the sole testimony of the petitioner could not be relied upon.

It has been held by the Apex Court in Satyajit Banerjee v. State of West Bengal (ST) jt 2004 (10) 27 that direction for de novo trial could be given in extraordinary case where Court was convinced that entire trial was farce. Revisional Jurisdiction against the order of acquittal at the instance of the complainant, has to be exercised by the High Court only in very exceptional cases where the High Court finds defect of procedure or manifest error of law resulting in flagrant miscarriage of justice. The present case does not warrant a retrial.

A finding of acquittal, as per Section 401(3) of the Code of Criminal Procedure, cannot be converted into a finding of conviction by this Court.

The reasons given by the Trial Court while acquitting respondents are sound reasons. The impugned judgment dated 13.8.2002, thus, does not call for any interference. Accordingly, this revision petition is dismissed.