Bombay High Court
Shaikh Ahmed Shaikh Begubhai vs State Of Mah & Ors on 3 June, 2019
Author: V. K. Jadhav
Bench: V. K. Jadhav
crirevn201.05
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL REVISION APPLICATION NO. 201 OF 2005
1. Shaikh Ahmed s/o Shaikh Begubhai
age 45 years, Occ. Agriculture,
residing at Pimpalwadi Pirachi,
Taluka Paithan,
District Aurangabad. Revision applicant
(orig. complainant)
VERSUS
1. The State of Maharashtra,
through the Police Station Officer,
Newasa Police Station, Newasa,
Dist Ahmednagar.
2. Altaf s/o Badshah Pathan,
age 25 years, Occ. Agriculture,
Residing at Pimpri Shahali,
Tq. Newasa, Dist Ahmednagar.
3. Ashabi w/o Badshah Pathan,
age 51 years, Occ. Agri and Household.
Residing at Pimpri Shahali,
Tq. Newasa, Dist Ahmednagar.
4. Firoz s/o Badshah Pathan,
age 22 years, Occ. Agriculture,
Residing at Pimpri Shahali,
Tq. Newasa, Dist. Ahmednagar.
5. Rijwana d/o Badshah Pathan,
age 24 years, Occ. Agri & Household, ...Respondents
Residing at Pimpri Shahali, [R. Nos. 2 to 5
Tq. Newasa, Dist. Ahmednagar. Ori. Accused]
.....
Mr. K H Surve Advocate for the applicant.
Mr. A P Basarkar APP for Respondent No.1 State.
Mr. V R Dhorde Advocate for respondent nos. 2 to 5.
.....
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CORAM : V. K. JADHAV, J.
Date of Reserving
the Judgment :07.03.2019
Date of pronouncing
the Judgment : 03.06.2019
JUDGMENT :-
1. By way of this criminal revision, the petitioner-original complainant, who is the father of deceased Anjum is challenging the judgment and order dated 10.03.2005 passed by the learned Additional Sessions Judge, Shrirampur in Sessions Trial no.67 of 2004 thereby acquitting respondent nos. 2 to 5/original accused.
2. Brief facts giving rise to the present case are as follows :-
a] The applicant is the father of deceased Anjum. Deceased daughter of revision petitioner namely Anjum was married with respondent no.2/original accused no.1 resident of Pimpri Shahali, Tq. Newasa. Marriage was performed on 19.10.2003. After marriage, Anjum went to reside in the house of the accused for cohabitation. After marriage, Anjum was treated well for about 5 to 6 months. Thereafter, accused started abusing and beating her. They used to make her starve. Deceased Anjum used to tell about her ill-treatment to her father-complainant and others whenever she visited her parental home. The complainant and others used to send her back to ::: Uploaded on - 11/06/2019 ::: Downloaded on - 14/07/2019 06:11:24 ::: crirevn201.05 -3- the marital home after consoling her. Two months thereafter, the land adjoining to the land of the accused was put on for sale. The accused then started ill-treating Anjum for bringing Rs.50,000/- from her parents to purchase that land. During stay of Anjum at matrimonial home for 11 months she had been to her parental house twice demanding some or other amount and stated that she was assaulted, abused, ill-treated and driven away for non fulfillment of the same. On 18.9.2004 Anjum and her father-in-law visited the house of revision petitioner and her father in law had demanded an amount of Rs.50,000/- for purchasing the land in the vicinity of their habitation. On 21.9.2004 complainant/revision petitioner brought Rs.10,000/- from Shaikh Wajir (PW 2) and paid the same as a part fulfillment of his assurance and assured to repay the balance amount within 15 days as he wanted to make some further arrangement and requested his son-in-law to treat his daughter Anjum properly and returned to his house on 22.9.2004. Accused persons threatened of dire consequences if he did not pay the money early. b] On 30.09.2004 at about 05.00 a.m. the cousin sister of the complainant received a phone call and she informed the complainant/revision petitioner that Anjum was serious and admitted in the Civil Hospital, Ahmednagar. Complainant and his relatives proceeded to the Civil Hospital, Ahmednagar. There he came across ::: Uploaded on - 11/06/2019 ::: Downloaded on - 14/07/2019 06:11:24 ::: crirevn201.05 -4- the police Patil of village Pimpri Shahali and the Police Patil informed them that Anjum died because of the poisonous substance. After conducting postmortem, complainant took dead body of deceased Anjum to Newasa and lodged FIR in the police Station, Newasa at about 16.15 hours. The crime bearing No.181/2004 came to be registered against the accused persons for the offences punishable under sections 306, 498-A, 504, 506 read with section 34 of IPC and ASI Mr. Pawar handed over the investigation to PSI Kadam. The P.S.I. Mr. Kadam arrested the accused nos. 1 to 3 on 1.10.2004. He prepared spot panchanama, recorded statements of the witnesses. Viscera was sent to C.A.. On 2.11.2004 he arrested accused nos. 2 and 4. After completion of investigation, he filed charge sheet- against the accused in the Court of Judicial Magistrate First Class, Newasa.
c] Judicial Magistrate First Class, Newasa vide order dated 19.1.2004 committed the case to the Court of Sessions, Newasa.
d] The learned Sessions Judge framed the charge for the offences punishable under sections 306, 498-A read with section 34 of IPC against the accused and the particulars of the offences were read over and explained to them in Marathi. The accused pleaded not guilty to the charges levelled against them and claimed to be tried. In their statement under section 313 of Cr.P.C. the accused ::: Uploaded on - 11/06/2019 ::: Downloaded on - 14/07/2019 06:11:24 ::: crirevn201.05 -5- denied that any land adjoining to their land was put on for sale at any time and also denied that they asked Anjum to bring Rs.50,000/- for purchasing the land. The learned Additional Sessions Judge, Shrirampur before whom the trial was conducted assessed the evidence on record and came to the conclusion that accused were not guilty of the offences levelled against them and thus acquitted the accused persons by judgment and order dated 10.3.2005 passed in Sessions Trial No.67 of 2004.
3. Being aggrieved and dissatisfied by the said decision of the learned Additional Sessions Judge, Shrirampur, the revision petitioner-complainant filed this criminal revision application challenging the legality and validity of the order passed by the learned Additional Sessions Judge, Shrirampur.
4. Learned counsel for the applicant submits that, the learned Sessions Judge failed to appreciate the date of marriage and the date of death fall within a period of one year. The defence has projected a story that deceased Anjum was unwilling to reside in rural atmosphere. The learned Additional Sessions Judge has not properly scrutinized the evidence. Death of deceased Anjum took place at her matrimonial home and the accused persons are required to explain as to how the poisonous substance was consumed and under what circumstances it was done by Anjum. The learned ::: Uploaded on - 11/06/2019 ::: Downloaded on - 14/07/2019 06:11:24 ::: crirevn201.05 -6- counsel further submits that the Sessions Court has wrongly concluded that there were exaggerations by the complainant in his statement during the course of trial and version given in his complaint. Learned counsel further submits that none of the accused persons had intimated the complainant about death of his daughter Anjum. Learned Additional Sessions Judge has made wrong interpretation of facts. Learned counsel submits that learned Additional Sessions Judge failed to appreciate that the tide was poised against the accused persons. The learned counsel further submits that the learned trial court has not properly appreciated the evidence and acquitted the accused.
5. Learned counsel for the applicant in order to substantiate his submissions placed reliance on a judgment in the case of K. Chinnaswamy Reddy Vs. State of A.P. and another reported in AIR 1962 SC 1788.
6. The learned counsel for respondent nos. 2 to 5 original accused submits that, the evidence of P.W.3-father of deceased, P.W.5-mother of deceased and P.W.2 Shaikh Wajir is not consistent, reliable and trustworthy. The aforesaid witnesses have materially improved their version before the court. The learned Judge of the trial court has rightly acquitted the accused for the offences as charged ::: Uploaded on - 11/06/2019 ::: Downloaded on - 14/07/2019 06:11:24 ::: crirevn201.05 -7- against them. Learned counsel submits that the revisional jurisdiction of the High Court while examining the order of the acquittal is extremely narrow and ought to have been exercised only in case where the trial court had committed manifest error of law or procedure or had overlooked or ignored relevant material evidence, thereby causing miscarriage of justice. Learned counsel submits that re-appreciation of evidence in exercise of revisional powers is impermissible. Learned counsel submits that there are vague allegations about demand of certain amount and ill-treatment being extended to deceased Anjum on account of non fulfillment of same. There is no substance in this criminal revision application and the same is thus liable to be dismissed.
7. I have also heard the learned A.P.P. for the respondent No.1 State.
8. I have carefully perused the evidence of the prosecution witnesses. P.W.3 and P.W.5 who are the parents of deceased Anjum. According to them, deceased Anjum was given in marriage to accused No.1 on 19.10.2003. After the marriage, she was treated well for 5 to 6 months. P.W.3 has disposed that the accused used to beat and starve deceased Anjum. If deceased Anjum treated well for a period of 5 to 6 months and death occurred on 30.9.2004, it was ::: Uploaded on - 11/06/2019 ::: Downloaded on - 14/07/2019 06:11:24 ::: crirevn201.05 -8- possible for the parents to quote the incident of beating and starving as alleged during the period of five months prior to the death. According to the parents, the accused used to beat deceased Anjum for bringing an amount of Rs.50,000/- from them for purchase of agricultural land since the said land, adjoining to the land of the accused, was put on for sale. P.W.3 Shaikh Ahmed/father of deceased Anjum has deposed that on 18.9.2004 deceased Anjum had been to their house alongwith her father-in-law and disclosed to them about the ill-treatment being extended to her on account of the said demand. P.W.3 Shaikh Ahmed has admitted in his cross examination that deceased Anjum had been to his house twice in four months. He is not in a position to state the date and day. It is pertinent to note that in examination in chief, P.W.3 Shaikh Ahmed has given a reference to a specific date when deceased Anjum had been to their house alongwith her father-in-law. P.W.5 Banobi/mother of deceased has not given any date. However, she has given vague reference that after about two months deceased Anjum had been to their house alongwith her father-in-law. It also appears that P.W.3 Shaikh Ahmed and P.W.5 Banobi have materially improved the prosecution story. Even P.W.3 Shaikh Ahmed has also admitted in his cross examination that he has no knowledge whether the land adjoining to the land of the accused was put for sale or not. Even there are material contradictions as to the demand of amount from ::: Uploaded on - 11/06/2019 ::: Downloaded on - 14/07/2019 06:11:24 ::: crirevn201.05 -9- P.W.2 Shaikh Wajir, who happened to be brother-in-law of P.W.3 Shaikh Ahmed. P.W.3 Shaikh Ahmed was not certain as to how much amount he has demanded from his brother-in-law to fulfill the demand of the accused. Thus, the learned Judge of the trial court on appreciation of evidence of all these material witnesses observed that their evidence is not consistent, reliable and trustworthy.
9. In the case of Vimal Singh vs. Khuman Singh, reported in 1998 (7) SCC 223 the Supreme Court, while discussing the power of High Court in the matter of interference with the order of acquittal, by referring the decision of the Supreme Court in the case of K. Chinnaswamy Reddy vs. State of Andhra Pradesh, reported in AIR 1962 SC 1788, in para nos. 8 and 9 of the judgment, has made the following observations:-
"8. The legal position as to the powers of the High Court in revision in the matter of interference with the order of acquittal is no longer res integra, as the law in this regard is very well settled. Suffice it to refer to in this regard a decision of this Court in K. Chinnaswamy Reddy vs. State of Andhra Pradesh (AIR) 1962 SC 1788) wherein it was held, thus :
"It is true that it is open to a High Court in revision to set aside an order of acquittal even at the instance of private parties, though the State may not have thought fit to appeal; but this jurisdiction should be exercised by the High Court only in exceptional cases, when there is some glaring defect in the procedure or there is a manifest error on a point of law and ::: Uploaded on - 11/06/2019 ::: Downloaded on - 14/07/2019 06:11:24 ::: crirevn201.05 -10- consequently there has been a flagrant miscarriage of justice. Sub-section (4) of Section 439 forbids a High Court from converting a finding of acquittal into one of conviction and that makes it 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 retrial, when it cannot itself directly convert a finding of acquittal into a finding of conviction. This places limitations on the power of the High Court to set aside the a finding of acquittal in revision and it is only in exceptional cases that this power should be exercised.....
Where the appeal Court wrongly ruled out evidence which was admissible, the High Court would not be justified in interfering with the order of acquittal in revision, so that the evidence may be reappraised - after taking into account the evidence which was wrongly ruled out as inadmissible. But the High Court should confine itself only to the admissibility of the evidence and should not go further and appraise the evidence also".
9. Coming to the ambit of power of High Court under Section 401 of the Code, the High Court in its revisional power does not ordinarily interfere with judgment of acquittal passed by the trial court unless there has been manifest error of law or procedure. The interference with the order of acquittal passed by the trial court is limited only to exceptional cases when it is found that the order under revision suffers from glaring illegality or has caused miscarriage of justice or when it is found that the trial court has no jurisdiction to try the case or where the trial court has illegally shut out the evidence which otherwise ought to have been considered or where the material evidence which clinches the issue has been overlooked. These are the instances where the High Court would be justified in interfering with the order of acquittal. Sub- ::: Uploaded on - 11/06/2019 ::: Downloaded on - 14/07/2019 06:11:24 :::
crirevn201.05 -11- section (3) of Section 401 mandates that the High Court shall not convert a finding of acquittal into one of conviction. Thus, the High Court would not be justified in substituting an order of acquittal into one of conviction even if it is convinced that the accused deserves conviction. No doubt, the High Court in exercise of its revisional power can set aside an order of acquittal if it comes within the ambit of exceptional cases enumerated above, but it cannot convert an order of acquittal into an order of conviction. The only course left to the High Court in such exceptional cases is to order retrial. In fact, Sub- section (3) of Section 401 of the Code forbids the High Court in converting the order of acquittal into one of conviction. In view of the limitation on the revisional power of the High Court, the High Court in the present case committed manifest illegality in convicting the appellant under Section 304 Part - I and sentencing him to seven years' rigorous imprisonment after setting aside the order of acquittal."
10. In the case of K. Chinnaswamy Reddy vs. State of A.P. and another (supra), relied upon by learned counsel for the applicant, the Supreme court has observed that only in exceptional case the power of the High Court to set aside the finding of the acquittal should be exercised.
11. In the case of Venkatesan vs. Rani and another reported in 2013 ALL SCR 3071 relied upon by learned counsel for the respondents-accused persons the aforesaid case of Vimal Singh has been referred to and the Supreme Court has made similar ::: Uploaded on - 11/06/2019 ::: Downloaded on - 14/07/2019 06:11:24 ::: crirevn201.05 -12- observations, as are made in the said case of Vimal Singh (Supra).
12. In the case of Sou. Anuja Ashok Tendolkar vs. Babai @ Ramchandra Govind Pednekar and others, reported in 2001 ALL MR (Cri.) 468, relied upon by learned counsel for the respondents- accused, in para 7 of the judgment, this court (Coram: Dr. Pratibha Upajani, J.) has made the following observations:-
"7. This Court has to keep in mind that the lower Court has acquitted the accused. After perusal of the Judgment and other record and proceedings, it is revealed that there is no manifest error of law or illegality on the part of the lower court. Since the allegation about outraging the modesty of the complainant indeed is a serious matter, this Court scanned the entire record and proceedings, but no irregularity could be found to sustain the charge levelled against the accused. Thus, when the Judgment of the lower Court does not suffer from any manifest illegality, it would not be proper to order re-trial. In revision against acquittal by a private complainant, this Court cannot give finding itself as if it is acting as a Court of appeal and then order re-trial. Normally re-trial should not be ordered, unless there is more infirmity rendering the trial defective. In the present case at hand, no such defect is found. What is found is that the observation of the lower Court that there was no material before him to convict the accused, which is not erroneous. As per the provisions of Section 401(3) of the Code of Criminal Procedure, 1973, this Court cannot convert the finding of acquittal into one of conviction. The powers of the High Court to in revision are severely restricted. It is settled law ::: Uploaded on - 11/06/2019 ::: Downloaded on - 14/07/2019 06:11:24 ::: crirevn201.05 -13- that revisional jurisdiction, when invoked by a private complainant against the order of acquittal, ought not to be exercised lightly. Hence, this Revision application will have to be dismissed."
13. The interference in the order of acquittal passed by the trial court, is limited only to the following exceptional cases:-
i) order under revision suffers from glaring illegalities,
ii) or has caused miscarriage of justice,
iii) or when it is found that the trial court has no jurisdiction to try the case,
iv) or where the trial court has illegally shut the evidence which otherwise ought to have been considered,
v) or Where the material evidence which clinches the issue has been overlooked and
vi) where the admissible evidence is wrongly brushed aside as inadmissible.
14. On going through the judgment and order of acquittal, I do not find any glaring illegalities or miscarriage of justice. The learned A.P.P. has placed before this court the judgments of the Supreme Court in following two cases :-
i) Kali Ram vs. State of H.P. reported in AIR 1973 SC 2773
ii) Subramaniam vs. State of T.N. reported in AIR 2009 SC (Supp) 1493
15. In the aforesaid two cases, the Supreme Court has observed ::: Uploaded on - 11/06/2019 ::: Downloaded on - 14/07/2019 06:11:24 ::: crirevn201.05 -14- that in the appeal against acquittal, the appellate court should not interfere when two views are possible and if the view taken by the trial court not wholly unreasonable or otherwise perverse. In the instant case, on the basis of the prosecution evidence, the view taken by the trial court does not appears to be unreasonable. I do not find any perversity in the order of acquittal passed by the trial court.
16. In the instant case, though deceased Anjum died within a very short span, however, considering the evidence led by the prosecution, I do not find that any case is made out so as to cause interference in the order of acquittal by exercising revisional jurisdiction. In view of the same, I find no substance in this criminal revision application. Hence, the following order:-
ORDER Criminal revision application is hereby dismissed. Rule discharged.
(V. K. JADHAV, J.) rlj/ ::: Uploaded on - 11/06/2019 ::: Downloaded on - 14/07/2019 06:11:24 :::