Sk. Rehanabi Sk. Ahmed vs Sk. Ahmed Sk. Miya And Ors.
2003 Latest Caselaw 960 Bom

JUDGMENT

P.S. Brahme, J.

1.Heard Mr. Bhide, the learned counsel for applicant and Mr. Shinde, Adv. for Non-Applicant nos. 1 and 6.

2.This revision application is directed against the judgment and order of acquittal passed by the 12th Judicial Magistrate, First Class, Akola in Regular Criminal Case No.1237 of 1997, dated 8th September, 1999 whereunder Non-applicant nos. 1 and 6 namely Sk. Ahmed Sk. Miya and Sk. Miya Sk. Raheman came to be acquitted of the offences u/s. 498-A, 506 r/w. 34 of the Indian Penal Code.

3.As per the prosecution case, which was initiated on the report (Exh.18) filed by applicant Rehanabi Sk. Ahmed at Police Station, Shegaon, the applicant, who was married to Non-applicant no.1 Sk. Ahmed, was subjected to cruelty and ill-treatment by non-applicant no.1, his father Sk. Miya (Non-applicant no.6), his mother Chandbee and brothers Sk. Raheman and Sk. Karim and his wife Heena Cousar. It was alleged that Non-applicant no.1 and his relatives were demanding money and asking her to bring money from her parents and on account of her inability to bring amount, she was physically assaulted at times and ultimately, on 18.3.1997, she was assaulted, ornaments on her person were removed forcibly and she was driven out of the house. She returned to her parents place at Shegaon and then lodged report (Exh.18) at the Police Station, Shegaon, on the basis of which offence was registered and ultimately, charge sheet was filed against the non-applicants and other relatives of non-applicant no.1 in the Court of the 12th Judicial Magistrate, First Class, Akola.

4.At the trial, the applicant herself gave evidence before the Court and narrated the facts constituting cruelty and ill-treatment meted out to her by the non-applicants. One Yasin (P.W.2) was also examined as a witness. Prosecution has also examined Head Constable Janardhan who made investigation in the matter. Defence of the non-applicants was that of denial. The Judicial Magistrate, considering the evidence on record, found that prosecution has failed to establish the fact that the applicant was subjected to ill-treatment and cruelty as contemplated u/s. 498-A of the Indian Penal Code and also that prosecution has failed to establish that the non-applicants committed offence u/s. 506 of the Indian Penal Code. Consequently, the accused were acquitted. This order of acquittal is under challenge in this revision application.

5.Mr. Bhide, the learned counsel for the applicant took us through the evidence on record and pointed out that the evidence of applicant insofar as the material particulars constituting the offence, has not been shaken, though she was subjected to cross-examination by defence. He pointed out that the trial Court has observed so in para 7 of the judgment wherein the trial Court has said "Except the aforesaid fact her version has not been shaken in cross-examination". As regards the version of the applicant, the learned counsel pointed out that in fact no such omission, material as would amount to contradiction has been brought on record. The learned counsel submitted that appreciation of evidence by the trial Court for reaching the finding of acquittal is perverse and therefore, interference in the judgment of acquittal is called for.

6.Mr. Shinde, the learned counsel appearing for the non-applicants has vehemently submitted that the trial Court has committed no error in appreciating the evidence and that, on the evidence on record, prosecution has failed to establish that applicant was subjected to cruelty. The finding recorded by the trial Court that the factum of cruelty is not established on the evidence adduced is not at all perverse finding and therefore, there could not be any interference by this Court in its revisional jurisdiction. He placed reliance on the decision of the Apex Court in , Vimal Singh, appellant .vs. Khuman Singh and another-respondent. What is laid down by the Apex Court is that the High Court can interfere with the order of acquittal if it comes within the ambit of exceptional cases such as the same suffering from glaring illegality etc. However, it cannot convert the order of acquittal into order of conviction. It is further held that if the High Court is convinced that the accused deserves conviction, what is left to the High Court is to direct retrial. On facts, the Apex Court found that the High Court has converted the order of acquittal into one of conviction on the ground of discarding the evidence of certain witnesses. However, it was clear that the trial Court did not shut out evidence. It assessed the entire evidence and concluded that prosecution failed to prove its case beyond reasonable doubt and as such, acquitted the accused. Therefore, the Apex Court found that interference by the High Court by re-appreciation of evidence was not proper.

7.So far as the law laid down by the Apex Court in the decision in (supra) is concerned, there could be no debate and the limits of powers of the High Court for interference in the case of judgment of acquittal as envisaged u/s. 401(3) of the Code of Criminal Procedure are well understood. It is correct proposition of law that under the guise of power to interfere with the judgment of acquittal, the High Court is not empowered to re-appreciate evidence. However, as rightly put by the learned counsel for the applicant, if appreciation of evidence by the trial Court is found to be perverse and consequently, the judgment of acquittal is based on perverse appreciation of evidence, then it is within the limits of the High Court in its revisional jurisdiction to interfere with the judgment and order of acquittal. It is also not dispuited that while exercising revisional jurisdiction and interfering with the order of acquittal, the High Court cannot constitute its own findings on appreciation of evidence and convert the order of acquittal into that of conviction. In that contingency, what is left for the High Court is to remit the matter to the trial Court for trial on setting aside the order. In the case before hand, there is evidence of applicant in which she has stated meticulously as regards harassment and cruelty meted out to her by the non-applicants. It was a matter of record that on the day of occurrence i.e. on 18.3.1997 after the applicant was physically assaulted and harassed, she was driven out from the house after taking out ornaments from her person and then she lodged complaint on next day i.e. on 19.3.1997 to Police Station, Shegaon. After she was driven out on 18.3.1997 from Akola, she came to Shegaon to her parents house and on 19.3.1997, she lodged report. The contents of report (Exh.18) do reflect the factum of ill-treatment and cruelty meted out to her on account of demand of money and non-fulfilment of the same and also about factum of physical cruelty meted out to her on 18.3.1997 and driving her out of the house giving threats to her life by her inlaws and her husband i.e. Non-applicant no.1.

8.Prosecution also led evidence of witness Sk. Yasin (P.W.2) who happens to be cousin of the applicant and as per his evidence, when he was at the Bus stand at Akola in the evening, the applicant along with her children met him and when he inquired with her, she disclosed him as to what was done to her by the non-applicants and also the fact that she was driven out of the house. He also stated that he reached her to Shegaon to her parents house.

9.The trial Court has discarded evidence of witness Yasin only on the ground that whatever the witness claimed before the Court, particularly in respect of disclosure alleged to have been made to him by the applicant at the Bus stand, he did not state so before police when his statement was recorded. In my opinion, there was no justification for discarding his evidence outright merely because he has omitted to disclose in his statement before the police regarding the factual aspect alleged to have been made to him by the applicant in respect of the incident that actually took place on 18.3.1997. The fact remains that whatever he stated before the Court that on that day applicant along with her children met him at the Bus stand at Akola, gains corroboration to what the applicant has stated in her evidence before the Court. There is no specific challenge to this claim of witness Yasin by the defence. If that is so, whatever was disclosed to him or disclosure was made to him by applicant is certainly relevant as a conduct lending assurance to the claim of applicant. That is the reason why the trial Court has committed an error in rejecting his evidence outright.

10.So far as the applicant is concerned, as stated earlier, in her evidence before the Court, she has stated in her evidence regarding ill-treatment and cruelty meted out to her during the period she stayed in the matrimonial home and particularly, what was done to her on 18.3.1997 and also about the fact that she was driven out of the house after removing ornaments from her person. However, the trial Court has discarded her evidence on the ground that there are omissions vis-a-vis her report and statement before the police. I have carefully gone through the report (Exh.18), her statement recorded by police and also her evidence before the Court. I did not find that there was any material omission which would amount to contradiction and that too, was sufficient to discredit her testimony. It is true that the learned counsel for the non-applicant has righly pointed out that about demand of amount of Rs. 1,500/- there is no reference either in the report (Exh.18) or in the statement recorded by the police. In the report (Exh.18), there is however a statement to the effect that her husband used to beat her and that he used to ask her to bring money from her parents and that she did disclose to her parents and brother about ill-treatment given to her on that count. In the report, she did state about the incident that took place on 18.3.1997 on which date she was driven out from the house. The only omission in the report (Exh.18) is in respect of specific date as "18.3.1997". But, that omission by itself is not sufficient to discard either the contents of the report or the evidence of the applicant. In this context, it is very significant to note the observations of the trial Court in para 7 of the judgment. In that paragraph, the trial Court has dealt with her evidence in respect of demand of money, insistence on her to bring money from her parents and also assault and beating to her by her husband and also as to the incident that took place on 18.3.1997 as described in the report (Exh.18). The trial Court observed " except the aforesaid fact her version has not been shaken in cross-examination." This observation clinclingly goes to show that the trial Court did find that, whatever the applicant has stated about cruelty and ill-treatment meted out to her and also about narration of the incident that took place on 18.3.1997, has not been shattered by the defence, though she was subjected to cross-examination. In the background of this, the finding recorded by the trial Court that on the evidence availble on record, the prosecution has not proved that there was ill-treatment and cruelty to the applicant is certainly perverse. That is the result of illegality committed by the trial Court in not considering the evidence that was on record which, according to the trial Court itself, remained undisturbed. Mr. Shinde, the learned counsel for the non-applicant, tried to justify the finding of acquittal recorded by the trial Court on the ground that besides the evidence of applicant there is no evidence to corroborate her evidence on the point of cruelty and ill-treatment. He also pointed out that though the applicant was driven out from the house on 18.3.1997, she lodged complaint on 19.3.1997 at Police Station, Shegaon which fact itself falsifies her claim and therefore, in absence of any corroboration to her evidence, the trial Court was right in holding that on the evidence on record factum of cruelty and ill-treatment is not established. It is very difficult to accept the submissions of the learned counsel for the Non-applicant. This is not a case of incorrect appreciation of evidence. If there is incorrect appreciation of evidence, this Court cannot interfere with the finding of acquittal in its revisional jurisdiction and for the reason that this Court cannot re-appreciate the evidence. In the case before hand, what is found is that the trial Court has omitted to consider the case which the trial Court itself has found to be not shaken. Therefore, it is a case of grave illegality committed by the trial Court in leaving out of consideration the evidence of applicant when there is no tangible evidence to discard that evidence. If that is so, the evidence of applicant, which remained unshaken and which gains corroboration of the report (Exh.18), there is no substance in the submission of Mr. Shinde, the learned counsel for the Non-applicants, that in accepting the evidence of applicant further corroboration was necessary. Therefore, the trial Court has committed grave illegality in recording the finding of acquittal by discarding the evidence of applicant. In this view of the matter, I feel that interference with the judgment and order of acquittal is called for. There is justification to interfere with the order of acquittal and for that reason, the revision application will have to be allowed. However, so far as acquittal of Non-applicant no.4 Chandbee Sk. Miya fp (original accused no.3) is concerned, there seems jusitification and the trial Court is right in acquitting her of the offence as there is absolutely no evidence against her. It is also pertinent to note that this revision application is admitted as against Non-applicant nos. 1 and 6 only. Therefore, the judgment of acquittal vis-a-vis Non-applicant nos. 1 and 6 is concerned, is set aside. It is also imperative by the mandate of section 401(3) of the Code of Criminal Procedure to remit the matter to the trial Court for retrial. The provision contained in sub-section 3 of Section 401 of Cr.P.C. is to the effect that nothing in this section shall be deemed to authorise the High Court to convert the finding of acquittal into one of conviction. What is left to the High Court is to direct re-trial if the High Court is convinced that the accused deserves conviction and the judgment of acquittal recorded by the trial Court is suffering from glaring illegality. Hence, the order.

// ORDER //

The revision application is allowed.

The judgment and order passed by the trial Court in Regular Criminal Case No.1232 of 1997, dated 8th September, 1999 in respect of accused no.1 Sk. Miya Sk. Raheman and accused no.2 Sk. Ahmed Sk. Miya is set aside and the case is remitted to the trial Court for re-trial. The trial Court is directed to decide the matter afresh as expeditiously as possible and preferably within the period of four months from receipt of the record and proceedings.

Non-applicant nos. 1 and 6 shall appear before the trial Court on 17th September, 2003.

The record and proceedings be remitted back to the trial Court immediately.