Andhra Pradesh High Court - Amravati
Shamshad Begum vs The State Of A.P. 5 Others on 28 February, 2020
Author: C. Praveen Kumar
Bench: C.Praveen Kumar
HON'BLE SRI JUSTICE C.PRAVEEN KUMAR
Crl.R.C. No. 545 of 2008
O R D E R:-
On 19.02.2020, there was no representation on behalf of the petitioner-informant, as such, the matter was directed to be listed on 23.02.2020 under the caption "for dismissal". Again, when the matter was listed on 27.02.2020, there was no representation, as such, it was adjourned to this day under the same caption. Even today, there is no representation on behalf of the petitioner.
Heard the learned Public Prosecutor appearing on behalf of the accused - respondents 2 to 6 herein and perused the record.
The present Criminal Revision Case is filed by the informant under Sections 397 and 401 Cr.P.C. assailing the judgment of acquittal of the accused in C.C. No. 452 of 2005, dated 25.09.2007 on the file of the Court of II Additional Judicial First Class Magistrate, Machilipatnam.
Originally, the accused were tried for the offence punishable under Section 498-A IPC. By its judgment, dated 25.09.2007, the learned Magistrate acquitted the accused for the said offence.
The facts in issue are that A1 to A5 are residents of Machilipatnam. A1 is the son of A2 and A3 while A4 and A5 are sisters of A1 and daughters of A2 and A3. A1 was running business at Koneru centre while A2 was working in Income-tax Department. The informant married A1 on 08.09.2002 as per the rites and customs of Muslims. At the time of the marriage, the parents of the informant paid Rs.3.00 lakhs, 10 sovereigns of gold 2 CPK,J CrlRC_545_2008 and Ac.40.00 cents of agricultural land to A1 towards dowry. After the marriage, she was sent to her in-laws' house to lead marital life. At that time, A1 was working as Programmer in a private college in Chirala, hence A1 made his wife stay with his parents and sisters and was going to Chirala for attending his job. Taking advantage of loneliness of the informant, the in-laws started harassing her stating that she was not a suitable match to A1 and their status. They used to beat her with hands and abused her both mentally and physically. Even though she used to inform about the same to A1 whenever he visited Machilipatnam, he turned a deaf ear to her words and used to support other accused. About 1½ year back, A1 left his job and started business in Machilipatnam. Then, all the accused with a common intention started harassing her saying that she was not a suitable match to A1 and their status. It is stated that unable to bear harassment, she used to inform the same to her parents. Thereupon, her father and the elders held negotiations, convinced A1 and other accused and kept A1 and the informant separately in a portion of the house of Boppanna Vijayavani at H.B.Colony, Machilipatnam. The father of the informant supplied provisions to them for one month. After the said provisions were exhausted, A1 did not bring any provisions or other needs, but used to stay with his mother and father. Whenever the informant asked A1 to bring provisions, he used to pay deaf ear to her words. On the other hand, A2 to A5 used to visit her house, harass her and abuse her in filthy language stating that she was not suitable match to A1. While the 3 CPK,J CrlRC_545_2008 matter stood thus, the mother of the informant died. Since then, A1 totally avoided to come to the house and continued to live with the other accused, who purchased new house at H.B.Colony, Machilipatnam. The informant was carrying 4th month, and having no other go, she went to her parents' house and informed about the behaviour of the accused to Mahila Sangham, who again tried to hold negotiations but did not succeed. Finally, PW1 gave a report to the police, basing on which, a case in Cr.No. 88 of 2005 was registered for the offence punishable under Section 498-A IPC. After completion of investigation, a charge sheet came to be filed which was taken on file as C.C.No. 452 of 2005 on the file of the Court of II Additional Judicial First Class Magistrate, Machilipatnam.
On appearance, copies of documents as required under Section 207 Cr.P.C., came to be furnished, and thereafter, the accused were examined under Section 239 Cr.P.C., to which, they denied the offence.
On appearance of the accused, a charge under Sections 498- A IPC came to be framed, read over and explained to them in Telugu, to which, they pleaded not guilty and claimed to be tried.
In support of its case, the prosecution examined PWs.1 to 6 and got marked Exs.P1 to P4. After completion of prosecution evidence, the accused were examined under Section 313 Cr.P.C. with reference to the incriminating circumstances appearing against them in the evidence of the prosecution witnesses, to which 4 CPK,J CrlRC_545_2008 they denied, but however, they did not adduce any oral evidence except getting marked Exs.D1 and D2 in support of their case.
In the absence of any evidence, the trial Court acquitted the accused for the charged offences. Challenging the same, the present Criminal Revision Case is filed by the informant.
It is pertinent to note that either in Ex.P1 or in the statement recorded under Section 161 Cr.P.C., there is no whisper by PW1 stating that she was subjected to cruelty or harassment by the accused for additional dowry. According to her, she was subjected to cruelty on the ground that she was not a suitable match to A1 and she was not good-looking. Though she stated in her evidence and also in the statement recorded under Section 161 Cr.P.C. before the police that the accused, on one occasion, administered ant's poison to her, upon which, the neighbours of the locality informed her parents and that her father took her to Doctor for treatment, no scrap of paper was produced about the said fact. Neither any date, month or year was mentioned as to when such incident took place. Curiously, the allegation of administering ant's poison does find place in the charge sheet filed by the prosecution. Therefore, a doubt arises as to whether such incidents as alleged by PW1 occurred. PW1 in her evidence admitted that her marriage was performed with A1 as per rites and customs of Muslims on 08.09.2002 and by that time A1 was working as a Programmer in Chirala. Though it is alleged that at the time of marriage her parents gave cash of Rs.3.00 lakhs, 20 sovereigns of gold and Ac.40.00 cents of land to A1 as dowry, it 5 CPK,J CrlRC_545_2008 raises any amount of doubt about the capacity of PW2 to satisfy those demands. Because at that time, he was working as a City Bus driver earning about Rs.5000/- per month. PW2, in his evidence, admitted that at the time of the marriage, Nikhanama would be written and the gifts made by both the parties would be mentioned therein. Though PW1 deposed that payment of Rs.3.00 lakhs and gold was referred to in the said Nikhanama but no steps were taken to produce such document to prove the same. On the other hand, PW2, in his cross-examination, admits that only presentation of gold weighing 20 sovereigns, was mentioned in the Nikhanama, but not cash.
PW1 further deposed that A1 to A5 harassed her to bring Rs.50,000/- from the death benefits of her mother. There is no evidence to show as to when such a demand was made. A vague and bald allegation was made in that regard. It is also pertinent to notice that A2, the father of A1, was working in Income-tax Department at the relevant point of time at Rajahmundry. Though PW1 stated that A3, the mother of A1, also obtained her signatures on some blank papers, no specific dates were given namely as to when she put the signatures. There is also contradictory version with regard to the alleged payment of dowry. While in her evidence she stated that cash of Rs.3.00 lakhs was given to A2 and A3 prior to the marriage, a perusal of her statement recorded under Section 161 Cr.P.C. and the complaint would go to show that it was given at the time of the marriage as pasupukunkuma. Therefore, it is 6 CPK,J CrlRC_545_2008 doubtful as to whether the custom of giving any money or gold as pasupukunkuma is prevalent in Muslim community.
According to PW1, though HB colony falls within Chilakalapudi Police Station counselling was held at Robertsonpet Police Station wherein A1 agreed to look after her, and after counselling, A3 to A5 used to come to their house where they put separate family and harassed her saying that she was not a suitable match to A1. But none of the neighbours were examined, and on the other hand, the house owner, who was examined as PW4, turned hostile and did not support the prosecution case. There is absolutely no evidence to prove that either A2 to A5 or A1 ill-treated or harassed PW1 demanding additional dowry. None of the ingredients of Section 498-A IPC appear to have been satisfied in this case even from the evidence of PW1. As already pointed out, the evidence of PW2, the father of PW1, is contrary to the statements made by PW1 in her evidence.
According to PW2, one day, he came to know through one Lakshmi and went to the house of the accused and found PW1 vomiting. He took her to Dr.Jagan Mohan Rao for treatment. But there is absolutely no evidence to show that either PW1 was administered ant's poison by the accused or when she was treated by the doctor. PW2 admitted in his evidence that he worked under Lakshmi in their city bus, but Lakshmi was not examined for the reasons best known to the prosecution. While PW1 stated in her evidence that she alone went to the police station and gave the report, it is the evidence of PW2 that he also accompanied PW1 to 7 CPK,J CrlRC_545_2008 the Police Station along with his son and presented a report. The evidence of PW2 is not of any help to the prosecution case.
Apart from that it is also to be noted that in a revision filed against acquittal of the accused, the scope of interference is very limited unless it is pointed out that the reasoning given by the trial Court is perverse.
In K. Chinnaswamy Reddy vs State Of Andhra Pradesh1, the Hon'ble Apex Court held as under:-
"That it was open to a High Court in revision and at the instance of a private party to set aside an order of acquittal though the State might not have appealed. But such jurisdiction should be exercised only in exceptional cases, as where a glaring defect in the procedure or a manifest error of law leading to a flagrant miscarriage of justice has taken place. When s. 439(4) of the Code forbids the High Court from converting a finding of acquittal into one of conviction, it is not proper that the High Court should do the same indirectly by ordering a retrial. It was not possible to lay down the criteria for by which to judge such exceptional cases. It was, however, clear that the High Court would be justified in interfering in cases such as (1) where the trial court had wrongly shut out evidence sought to be adduced by the prosecution, (2) where the appeal court had wrongly held evidence admitted by the trial court to be inadmissible, (3) where material evidence has been overlooked either by the trial court or the court of appeal or, (4) where the acquittal was based on a compounding of the offence not permitted by law and cases similar to the above.
In Kalu Ahir And Others vs Ramdeo Ram2, the Hon'ble Apex Court held as under:-
"An unrestricted right of appeal from acquittal is specifically conferred only on the State and a private complainant is given the right of appeal ,only when the criminal prosecution was instituted on his complaint and then also subject to special leave by the High Court. A private complainant can 1 AIR 1962 SC 1788 2 AIR 1973 SC 2145
8 CPK,J CrlRC_545_2008 only claim a right, in common with all aggrieved parties in a criminal proceeding, to invoke the revisional jurisdiction of the High Court for redress against miscarriage of justice arising from an erroneous order of acquittal; but the High Court's power in such cases is circumscribed by the provisions of Ss. 417 and 439, Cr.P.C. and also by the fundamental principles of criminal Jurisprudence it is only in glaring cases of injustice resulting from some violation of fundamental principles of law by the trial court that the High Court is empowered to set aside the order of acquittal and direct a retrial of the acquitted accused. From the very nature of this power it should be exercised only in exceptional cases and with great care and caution. Trials are not to be lightly set aside when-such orders expose the accused persons to a fresh trial with all its consequential harassment. The power of revision conferred on the High Court by Ss. 435 and 439 Cr.P.C. is an extraordinary discretionary power vested in the superior court to be exercised in aid of justice. The High Court has been invested with this power to see that justice is done in accordance with the recognized rules of criminal jurisprudence and that the subordinate courts do not exceed their jurisdiction or abuse the power conferred on them by law. As a general rule, this power, in spite of the wide language of the sections does not contemplate interference with conclusions of fact in the absence of serious legal infirmity and failure of justice. This power is certainly not intended to be exercised as to one portion of the Criminal Procedure Code conflict with another as would be the case when, in the garb ,of exercising revisional power, the High Court in effect exercises the power of appeal in face of statutory prohibition. In revision, the High Court is expressly prohibited from converting acquittal into a conviction it makes it therefore 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 a retrial. The High Court when approached by a private party for exercising its power of revision in the case of an order of acquittal should therefore refrain from interfering except when there is a glaring legal defect of a serious nature which has resulted in grave failure of justice. The High Court is not expected to act as if it is hearing an appeal in spite of the wide language under s. 435 which empowers it to satisfy itself as to the correctness, legality or propriety of a finding, sentence or order and as to the regularity of any proceeding, and also in spite of the fact that under s.439 it can exercise inter alia the power conferred on a court of appeal under s.423, Cr.P.C. The power being discretionary, it is to be exercised judicially and not arbitrarily. Judicial discretion means a discretion which is informed by analogy and disciplined by system".
9 CPK,J CrlRC_545_2008 In State of Orissa Appellant v. Nakula Sahu and others Respondents3, the Hon'ble Apex Court held as under:
"9. So far as the first point is concerned, it is to be emphasised that although the revisional power of the High Court under S. 439 read with Sec. 435 of the Code the Criminal Procedure, 1898 is as wide as the power of Court of Appeal under S. 423 of the Code, it is now well settled that normally the jurisdiction of the High Court under Sec. 439 is to be exercised only in exceptional cases when there is a glaring defect in the procedure or there is a manifest error on a point of law which has consequently resulted in flagrant miscarriage of justice. Reference in this connection may be made to the decisions of this Court in Amar Chand Agarwalla v. Shanti Bose (1973) 4 SCC 10 : (AIR 1973 SC 799) and Akalu Ahir v. Ramdeo Ram (1973) 2 SCC 583 : (AIR 1973 SC 2145). In the latter case viz. Akalu Ahir v. Ramdeo Ram (supra) this Court following its earlier decision in the Amar Chand Agarwalla v. Shanti Bose (supra) held that in spite of the wide language of S. 435 of the Code of Criminal Procedure, 1898 which empowered it to satisfy itself as to the correctness, legality or propriety of any findings, sentence or order recorded or passed by any inferior court situate within the limits of its jurisdiction and as to the regularity of any proceeding of such inferior court and in spite of the fact that under S. 439 of the Code it can exercise inter alia the power conferred on a court of appeal under S. 423 of the Code the High Court is not expected to act under S. 435 or S. 439 as if it is hearing an appeal. The power being discretionary, it has to be exercised judiciously and not arbitrarily or lightly. Judicial discretion, as has often been said, means a discretion which in informed by tradition, methodised by analogy and disciplined by system".
In view of the law laid down in the judgments referred to above, and having regard to the nature of evidence adduced, and this being a revision against acquittal where the scope of interference is very limited, I see no reason to interfere with the impugned judgment.
Accordingly, the Criminal Revision Case is dismissed. 3 AIR 1979 SUPREME COURT 663 10 CPK,J CrlRC_545_2008 As a sequel, Miscellaneous Petitions, if any pending, shall stand disposed of as infructuous.
________________________ C. PRAVEEN KUMAR, J 28.02.2020 bcj