Delhi High Court

Sarvesh Chaturvedi & Anr. vs State Nct Of Delhi & Anr. on 10 February, 2015

Author: Sunita Gupta

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*    IN THE HIGH COURT OF DELHI AT NEW DELHI

                                   Date of Decision: 10th February, 2015
+    CRL.REV.P. 31/2013

     SARVESH CHATURVEDI & ANR.             ..... Petitioner
                 Through: Ms Sangita Bhayana, Advocate

                          versus

     STATE NCT OF DELHI & ANR.                ..... Respondent
                   Through: Ms Fizani Hussain, APP for State/R-1
                            Mr Manish Kumar, Advocate for R-2

     CORAM:
     HON'BLE MS. JUSTICE SUNITA GUPTA

                                   JUDGMENT

: SUNITA GUPTA, J.

1. Revisional jurisdiction of this Court has been invoked under

Section u/s 397 of the Code of Criminal Procedure (hereinafter

referred to as Cr.P.C.) r/w Section 482 Cr.P.C. challenging the

judgment dated 26th October, 2012 passed by Learned District and

Additional Sessions Judge, In-charge (South & South East), Saket,

New Delhi whereby the judgment passed by learned Metropolitan

Magistrate, Mahila Court dated 24th October, 2011 acquitting the

accused in case FIR 346/2006 PS Badarpur u/s 506/509 IPC was

upheld.

2. Petitioner No.2 is the daughter of petitioner No.1. They were

residing in the neighbourhood of respondent No.2. On 23rd February,

2004, a quarrel had taken place between petitioner No.1 and mother

of respondent No.2 on a trivial issue of disposal of garbage as

according to the petitioner mother of respondent No.2 Rajwati had

thrown garbage in front of house of petitioners. When an altercation

was going on between the two, respondent No.2 came out of the

room, abused the petitioners in filthy language and threatened to rape

petitioner No.2. He also ran after petitioner No.2. In order to save

herself she entered her house. On these allegations, the aforesaid FIR

was registered.

3. After completing investigation, charge sheet was submitted

before the learned Metropolitan Magistrate. Respondent No.2 was

put to trial on the basis of charges framed on 27th September, 2008 to

which he pleaded not guilty.

4. During trial, the prosecution examined in all five witnesses

including the petitioners. After the prosecution evidence was closed,

statement of respondent No.2 was recorded under Section 281 Cr.P.C.

in which he denied the case of prosecution and alleged his false

implication due to past enmity. He, however, stated that a quarrel had

taken place between his mother and petitioner No.1. He examined

one defence witness Satayapal Sharma in support of his defence.

5. Vide judgment dated 24th October, 2011, learned Metropolitan

Magistrate acquitted respondent No.2 of the charges levelled against

him observing that the complainant took contrary stands in her

original complaint dated 23rd February, 2006 and subsequent

complaint dated 26th April, 2006. Moreover, both the petitioners had

given contrary versions in their statements u/s 161 Cr.P.C. as well as

deposition in the Court. Not only that, none of the witnesses used the

specific words used by the accused against them. At the time of

quarrel, the accused was inside the house. Moreover, although the

incident had taken place in the street, however, no public witness was

examined. There was delay of 2 months in registration of FIR. In

order to invoke the provisions of Section 509 IPC, it was incumbent

to reproduce specific words used by the accused which were not

detailed by either of the witnesses. Even on the factual matrix of the

case, offence under Section 506 IPC was not proved as mere threat

does not fall within the definition of criminal intimidation unless it is

proved that the threat given by the accused caused an alarm to the

witness.

6. Feeling aggrieved, the petitioner/complainant preferred Crl.

Appeal No.14/2012 u/s 372 Cr.P.C. before learned District Judge and

Additional Sessions Judge, Incharge, Saket, New Delhi. The same

was dismissed by observing that the fate of the case apparently rests

on the version of PW3 & PW4. It was essential for the witnesses to

narrate the actual words used so that the Court can form an opinion as

to whether language was filthy or abusive or amounting to improper

expression designed "to insult the modesty of a woman" within the

ambit of penal clause under Section 509 IPC which was lacking.

Similarly, the allegations regarding criminal intimidation were not

consistent. Further reference was made to the settled legal

proposition regarding the scope of appeal against an order of acquittal

by referring to the judgment rendered by Hon'ble Supreme Court in

Chandrappa & Ors. vs. State of Karnataka, 2007 (2) Crimes 103

(SC) and another decision rendered by this Court in State (GNCT) of

Delhi vs.Saqib Rehman @ Masood & Ors., 2012 (3) JCC 2127 that

the Appellate Court should not ordinarily set aside a judgment of

acquittal in a case where two views are possible and, therefore,

dismissed the appeal.

7. The findings have been assailed by filing the present revision

petition on the ground that since there are patent illegalities while

evaluating the factual matrix of the case, as such, even while

exercising revisional jurisdiction, this Court is competent to re-

appreciate the evidence and although this Court has no power to

convert a finding of acquittal into one of conviction but it can remand

the case to the Trial Court for reconsideration. Reliance was placed on

Venkatesan vs. Rani & Anr., JT 2013 (11) SC 328.

8. It was submitted that the Trial Court had acquitted respondent

No. 2 primarily on the ground that there were certain discrepancies in

the testimony of the petitioners, however, discrepancies were minor in

nature and were not on the basic substratum of the case. Moreover,

the Trial Court also noticed that there was delay in lodging the FIR,

however, it failed to consider that the petitioner belonged to poor

strata of society and, therefore, after the incident when the complaint

was lodged no action was taken by the police. She was running from

pillar to post and also made complaint before Delhi Commission for

Women and on their instructions, the FIR was registered. It was

further submitted that the Trial Court took into consideration,

testimony of DW1-Satyapal Sharma, who tried to project as if he is an

independent witness by deposing that he was living in the

neighbourhood of both the parties and, therefore, they were known to

him. However, this witness is none else but the maternal uncle of the

accused and was, therefore, bound to depose in favour of respondent

No.2. Moreover, the Trial Court went wrong in observing that the

threats did not cause any alarm to the petitioner. Had that been the

case, the complainant would not have run from one forum to another

to seek justice. As such, it was submitted that the impugned order be

set aside.

9. Rebutting the submission of learned counsel for the petitioner,

it was submitted by learned counsel for the respondent that there is

presumption of innocence in favour of the accused. This presumption

is re-enforced, affirmed and strengthened by the fact that the accused

secured his acquittal not only before the learned Trial Court but also

before the Appellate Court. Reliance was placed on

Chandrappa(supra) for raising this submission. As regards, the scope

of High Court while exercising revisional jurisdiction, reliance was

placed on State of Kerala vs. Puttumana Illath Jathavedan

Namboodiri. AIR 1999 SC 981. Lastly it was submitted that the entire

evidence was considered by both the Courts below in correct

perspective and the same does not call for interference. Reliance was

also placed on Kanshi Ram vs. State, 86 (2000) DLT 609 for

submitting that mere threat is no offence, as such, the revision is liable

to be dismissed.

10. I have given my considerable thoughts to the respective

submissions of the counsel for the parties and have perused the

record.

11. What are the true contours of the jurisdiction vested in the High

Courts under Section 397 read with Section 401 of the Code of

Criminal Procedure, 1973 while examining an order of acquittal

passed by the Trial Court was considered by Hon'ble Supreme Court

in Venkatesan (supra) relied upon by the learned counsel for the

appellant. It will be advantageous to reproduce the following

observations:-

"6. ..........The law in this regard is well settled by a catena of decisions of this Court. Illustratively, as also chronologically, the decisions rendered in Pakalapati Narayana Gajapathi Raju v. Bonapalli Peda Appadu (1975) 4 SCC 477, Akalu Ahir v. Ramdeo Ram (1973) 2 SCC 583, Mahendra Pratap Singh v. Sarju Singh, AIR 1968 SC 707, K. Chinnaswamy Reddy v. State of A.P. AIR 1962 SC 1788 and Logendranath Jha v. Polai Lal Biswas , AIR 1951 SC 316 may be referred to. Specifically and for the purpose of a detailed illumination on the subject the contents of paras 8 and 10 of the judgment in the case of Akalu Ahir v. Ramdeo Ram (supra) may be usefully extracted below.

"8. This Court, however, by way of illustration, indicated the following categories of cases which would justify the High Court in interfering with a finding of acquittal in revision:

(i) Where the trial Court has no jurisdiction to try the case, but has still acquitted the Accused;

(ii) Where the trial Court has wrongly shut out evidence which the prosecution wished to produce;

(iii) Where the appellate court has wrongly held the evidence which was admitted by the trial Court to be inadmissible;

(iv) Where the material evidence has been overlooked only (either) by the trial Court or by the appellate court; and

(v) Where the acquittal is based on the compounding of the offence which is invalid under the law.

"6.1 These categories were, however, merely illustrative and it was clarified that other cases of similar nature can also be properly held to be of exceptional nature where the High Court can justifiably interfere with the order of acquittal.

"10. No doubt, the appraisal of evidence by the trial Judge in the case in hand is not perfect or free from flaw and a Court of appeal may well have felt justified in disagreeing with its conclusion, but from this it does not follow that on revision by a private complainant, the High Court is entitled to re-appraise the evidence for itself as if it is acting as a Court of appeal and then order a re-trial. It is unfortunate that a serious offence inspired by rivalry and jealousy in the matter of election to the office of village Mukhia, should go unpunished. But that can scarcely be a valid ground for ignoring or for not strictly following the law as enunciated by this Court."

6.2 The observations in para 9 in the case of Vimal Singh v. Khuman Singh (1998) 7 SCC 223 would also be apt for recapitulation and, therefore, are being extracted below.

"9. Coming to the ambit of power of the High Court under Section 401 of the Code, the High Court in its revisional power does not ordinarily interfere with judgments 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-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."

12. Similar view was taken in State of Kerala(Supra) relied upon

by the learned counsel for respondent No. 2 where it was observed as

under:-

"5... In Its revisional jurisdiction, the High Court can call for and examine the record of any proceedings for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order. In other words, the jurisdiction is one of Supervisory Jurisdiction exercised by the High Court for correcting miscarriage of justice. But the said revisional power cannot be equated with the power of an Appellate Court nor can it be treated even as a second Appellate Jurisdiction. Ordinarily, therefore, it would not be appropriate for the High Court to re- appreciate the evidence and come to its own conclusion on the same when the evidence has already been appreciated by the Magistrate as well as the Sessions Judge in appeal, unless any glaring feature is brought to the notice of the High Court which would otherwise tantamount to gross miscarriage of justice."

13. This being the legal position, reverting to the case in hand, a

perusal of the judgment passed by learned Trial Court as well as by

learned Additional Sessions Judge goes to show that the case basically

hinges on the testimony of both the petitioners which was scrutinized

by them minutely and, therefore, it was observed that the prosecution

has not been able to prove its case beyond reasonable doubt. Much

emphasis has been laid by the learned counsel for the appellant for

challenging the testimony of DW1-Satyapal Sharma for submitting

that he tried to project that he was an independent witness which was

not so as he was the maternal uncle of respondent No.2. Firstly, it

may be mentioned that there is nothing on record to show that DW1

was maternal uncle of respondent No.2. Even if he is so related to

him, the fate of the case was not decided on the testimony of this

witness. Although, learned Metropolitan Magistrate referred to his

testimony but the acquittal of respondent No. 2 was not on his

deposition whereas while affirming the findings of learned Trial

Court, except for making a reference that respondent No.2 examined

DW1 Satya Pal Sharma, there was no reference to his deposition for

which reason, it may be said that non-disclosure of his relation with

respondent No.2 proved fatal for the petitioners. Even otherwise as

observed in Venkatesan (supra), re-appreciation of evidence should

be refrained by the High Court while examining an order of acquittal

in the exercise of its revisional jurisdiction under the Code.