Bombay High Court
Suraya Ibrahim Shaikh vs Ibrahim Rahim Shaikh And Another on 11 December, 1995
Equivalent citations: 1996CRILJ2415, II(1996)DMC169
JUDGMENT
1. This is a revision petition directed against the judgment of acquittal dated 29-10-1988 in Criminal Case No. 532 of 1986 on the file of Judicial Magistrate, First Class, Thane. Heard the learned Counsel for the petitioner and the learned A.P.P. for the second respondent. The first respondent and his Counsel remained absent at the time of hearing.
2. The petitioner is the original complainant and the first respondent is the original accused. They are husband and wife. They were living together. According to the wife, the husband was ill-treating and assaulting her and was pressing her to bring Rs. 10,000/- from her brother. Then it is alleged that on 21-10-1986 at about 7.00 p.m. the wife filed a complaint before the police. She was examined by the doctor. After investigation, the police filed a charge-sheet against the accused-husband for offences under Ss. 323, 498-A, 342 and 504, I.P.C.
The defence of the husband was that he had not committed any such offence.
After trial, the learned Magistrate held that the prosecution case is not proved and passed the impugned judgment acquitting accused.
The State has not preferred any appeal against the judgment of acquittal. However, the wife who had lodged the complaint before the police has now come up with this revision application challenging the judgment of acquittal.
3. The learned Counsel for the petitioner has questioned the correctness and legality of the impugned judgment. It was maintained that there was sufficient evidence to prove the prosecution case. That the reasoning of the learned Magistrate in discarding the prosecution evidence is erroneous and not sustainable in law. It was also submitted that there was no proper investigation by the police and some witnesses were not examined during the investigation. The learned counsel for the petitioner, therefore, prayed that the impugned judgment be set aside and the case may be remanded to the learned Magistrate for re-trial of the accused. On the other hand the learned A.P.P. for State has supported the impugned judgment and it was argued that the scope of revision against an order of acquittal is very limited and that no case is made out for interfering with the impugned order.
4. It is well settled and there is no dispute that an order of acquittal cannot be converted into an order of conviction in a revision application. Though in an appeal against acquittal, the High Court can interfere and set aside the order of acquittal and pass an order of conviction and sentence, but no such order can be passed in a revision petition.
The scope of revisional powers in the case of an acquittal judgment has been explained by the apex Court in many cases. Suffice it to refer to few cases having bearing on the point under consideration.
5. The learned counsel for the petitioner invited the attention of the Court to a case reported in 1963 (1) Cri LJ 8 K. Chinaswamy Reddy v. State of Andhra Pradesh. That was a case whether the accused was convicted by the trial Court. On appeal, the learned Sessions Judge allowed the appeal and ordered acquittal of the accused. Then the original complainant carried the matter by a revision application before the High Court. The High Court allowed the revision application and remanded the matter for re-trial. Then the order of the High Court was challenged before the apex Court. The Supreme Court discussed the law on the point viz. right of a private party to file a revision against an order of acquittal in a police case. The Supreme Court clearly observed that the revisional powers against acquittal can be exercised only in exceptional cases where the interests of justice require interference. This jurisdiction cannot be ordinarily invoked or used merely because the lower Court has taken a wrong view of the law or misappreciated the evidence on record.
On facts, it was found that the learned appellate Judge had excluded the most important evidence as not admissible in evidence resulting in ordering the acquittal. The apex Court found that the reasoning of appellate Judge in excluding that part of the evidence was erroneous and cannot be sustained. It is in this context the apex Court observed that there should not be any retrial by the trial Court, but the appeal should be re-heard by the appellate Court in the light of the law laid down by the apex Court regarding admissibility if evidence under Section 27 of the Evidence Act.
Therefore, it is a case where the apex Court interfered since the lower appellant Court had excluded certain legally admissible evidence on the ground that it is inadmissible evidence. It is because of this wrong approach and wrong exclusion of evidence the matter was remanded to the appellate Court to rehear the appeal in the light of the law laid down by the apex Court.
6. In 1975 Cri LJ 1646 Pakalapati Narayan Gajapathi Raju v. Bonapali Peda Appada, the Supreme Court has observed that if acquittal is challenged in a revision petition by a private party, the High Court can exercise the power only in exceptional cases when there is manifest illegality or the prevention of a gross miscarriage of justice. The revisional jurisdiction, it is pointed out, cannot be invoked merely because the lower Court has not been appreciated the evidence properly. It was a case where the trial Court had acquitted the accused, but on revision at the instance of a private party, the High Court exercised the power of revision and set aside the order of acquittal and directed retrial. The order of the High Court was set aside. The apex Court explained that the Sessions Judge had considered the evidence on record and he had not over-looked any piece of evidence. Therefore, it was purely a case of appreciation of evidence by the trial Court and that cannot be challenged in a revision against acquittal.
In Ramu alias Ram Kumar v. Jagannath, the same law is reiterated by the apex Court. The interference of the order of acquittal by the High Court was set aside by the Supreme Court.
7. In Khetra Basi Samal v. The State of Orissa, it was a case of challenge to an acquittal before the High Court by a private complainant. Here also it is emphasised that in such a case the revisional powers can be exercised only in exceptional cases. Then the apex Court has pointed out some circumstances when the order of acquittal can be interfered with, viz. where the trial Court has no jurisdiction to try the case but tried the case and acquitted the accused or where the trial Court has wrongly shut out evidence which the prosecution wished to produce or which the appellate Court wrongly held that the evidence admitted by the trial Court as inadmissible or where the material evidence has been overlooked by the Court etc. In that case the High Court had interfered with the order of acquittal on the ground that the Magistrate should not have disbelieved the three eye witnesses. It was pointed out that the High Court has reappreciated the evidence and upset the finding recorded by the learned Magistrate which was impermissible in law.
In S. Guin v. Grindlays Bank Ltd., it was a case where the accused had been acquitted by the Magistrate and the order of acquittal was set aside and retrial was ordered by the High Court. When the matter was taken to the Supreme Court, it was observed that whatever might have been the error committed by the Magistrate, it was not just and proper for the High Court to remand the case for fresh trial. The order of acquittal had been passed about six years back.
8. Therefore, the position of law is that only in exceptional cases the High Court can interfere in revision to set aside an order of acquittal and then order retrial of the accused. The exceptional grounds mentioned in some of the cases are that the learned Magistrate has refused opportunity to the prosecution to produce evidence or he has shut out legal evidence from consideration or admitted inadmissible evidence and so on. It is also well settled that the presumption about innocence of the accused is re-enforced by the judgment of acquittal of the trial Court. It is also well settled that mere appreciation of evidence, however erroneous it may be, cannot be interfered with either in an appeal or revision against a judgment of acquittal. Merely because another view is possible, is no ground for an appellate or revisional Court to interfere and substitute its own view in the place of the view of the trial Court. Now in the light of this legal position we shall see the judgment of the learned Magistrate in the light of the evidence available on record.
9. The learned Counsel for the petitioner read the entire evidence and also the entire judgment of the learned Magistrate before me.
It is not a case where the learned Magistrate has refused any opportunity to the prosecution to adduce any evidence. There is no grievance that any application was made to the learned Magistrate for examination of a particular witness or witnesses and it was rejected by the Court. It is not a case where the learned Magistrate while discussing the evidence has ignored any piece of evidence on record.
The learned Magistrate has considered the entire evidence on record. He has discussed the evidence of each witness. He has found that there is no independent witness to prove the incident of assault on the wife except the assertion of the wife, who is an interested witness. The learned Magistrate has observed in para 8 of the judgment that except the complainant no other witness speaks of the incident of assault on 21-10-1986. Then he has discussed the evidence of the complainant. He has found that there is no independent corroboration to the evidence of the complainant. He has found that the version given by the complainant appears to be an after thought. Her version before the Court is an improvement of her earlier version. That her first complaint to the police was very vague and brief but three days later in her further statement she has given detailed statement which cannot be accepted. He has found that her version is unnatural.
10. After discussing the evidence of the complainant and of the witnesses, the learned Magistrate records a finding in para 12 as follows :-
"12. In the instant case, the prosecution could not establish the ring of circumstantial evidence. Therefore, merely on the complainant's deposition, the accused cannot be convicted, if done so it will be a moral conviction. As such the prosecution has miserably failed to prove the above five circumstances laid down by Their Lordships in case mentioned above."
The learned Magistrate has rejected the defence version also. It is, therefore, seen that it is purely a case resting on appreciation of oral evidence. The learned Magistrate has appreciated the evidence in one way and has come to the conclusion that the evidence of the prosecution is not reliable and sufficient to prove its case. This Court cannot reappreciate the evidence and take a view that the evidence is sufficient to prove the prosecution case. This is not the role of a revisional Court in a revision against an order of acquittal.
11. As already stated if this Court comes to the conclusion that the acquittal of the accused is liable to be set aside, the accused cannot be convicted by this Court. The Court can only order retrial of the accused. The incident in this case took place in October 1986. Now nine years have elapsed. The parties are husband and wife and they have been subsequently divorced. After long lapse of nine years, this is not a fit case to order retrial even if we accept the case of the petitioner that the acquittal is not justified, having regard to the long lapse of nine years, this is not a fit case to order re-trial.
Hence taking any view of the matter I am not inclined to exercise jurisdiction to set aside the order of acquittal and to remand the matter for retrial.
12. In the result, the revision application fails and is hereby dismissed.
13. Revision dismissed.