Dismissed

V. Maheswari, v. Vanam Gopal and 3 Others

Andhra Pradesh HC13 Feb 2020CRLRC/1745/2006

Case brief

AI extract

What is this about?

Revision court dismissed the petition, upholding the acquittal of the accused. The court found prosecution evidence contradictory on dowry demands and insufficient regarding the second marriage, noting the High Court must only interfere in exceptional cases of miscarriage of justice.

What did the court decide?

The Criminal Revision Case is dismissed confirming the order of acquittal dated 24.08.2006.

V. Maheswari, Vs Vanam Gopal and 3… — Pension and Retirement Benefits | Andhra Pradesh HC (2020)

¶1

HON’BLE SRI JUSTICE C.PRAVEEN KUMAR

¶2

Crl.R.C. No. 1745 of 2006

¶3

O R D E R:-

¶4

Heard the learned counsel for both the parties and perused

¶5

the record.

¶6

The present Criminal Revision Case is filed by the informant under Sections 397 and 401 Cr.P.C. challenging the acquittal of A1 to A3 (respondents 1 to 3 herein) for the offences punishable under Sections 498-A and 494 IPC in C.C.No. 445 of 2003, dated 24.08.2006 on the file of the Court of the Judicial Magistrate of First Class, Kurnool.

¶7

The allegations in the charge sheet are that the informant married A1 on 15.06.1997, and at the time of marriage, her parents paid marriage expenditure. After the marriage, she gave birth to two female children, and subsequently, A1 started harassing and threatening her stating that he would marry another girl. It is stated that A1 demanded additional dowry and when the complainant expressed inability to pay, A1 demanded PW2 to pay additional dowry. Having regard to the conduct of A1, PW1 filed Maintenance Case. A1 also filed divorce petition against PW1 and on 21.02.2003 asked her to pay an amount of Rs.1.00 lakh towards additional dowry and that he would withdraw divorce case if the amount is paid. It is stated that on 17.03.2002, at 05:30 a.m. A1 married A2 with the help of A3 at Sri Lakshmi Venkateswara Swamy Temple, Joharapuram. Originally, a private complaint was filed and when it was referred to police, a case in

¶8

2 CPK,J CrlRC_1745_2006

¶9

Crime No. 39 of 2003 came to be registered against the accused. After completing the investigation, charge sheet came to be filed for the offences punishable under Sections 498-A and 494 IPC against the accused.

¶10

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 offences and claimed to be tried.

¶11

In support of its case, the prosecution examined PWs.1 to 8 and got marked Exs.P1 and P2. After the closure 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 they denied. DW1 was examined and Exs.D1 and D2 were marked on behalf of the accused.

¶12

The point that arises for consideration is whether the prosecution was able to establish the guilt of the accused beyond all reasonable doubt?

¶13

PW1, the informant, in her evidence, deposed that her marriage with A1 was celebrated about seven years ago and at the time of marriage an amount of Rs.45,000/- and five tulas of gold were given to A1, and after the marriage, she joined with A1 and lived happily for a period of one year and gave birth to two children. Thereafter, A1 demanded her to give Rs.1.00 lakh and that A1 and his brother Ramaiah harassed her mentally and physically. She also deposed that A1 informed her stating that he was going to

¶14

3 CPK,J

¶15

CrlRC_1745_2006

¶16

marry another girl. In cross-examination, she stated that after the birth of two female children, A1 demanded dowry of Rs.1.00 lakh and when she was carrying 5^th month of second child, A1 sent her to her parents’ house and A1 was coming to her house at the time of delivery of the second child. She further stated that she never went to the house of A1 and one year after the birth of the second child, A1 stopped coming to her parents’ house.

¶17

From the evidence of PW1, it is clear that A1 started demanding additional dowry after the birth of the second child, and after delivery she never went to her house.

¶18

On the other hand, the evidence of PW2, who is the mother of PW1, is to the effect that A1 demanded additional dowry for the benefit of the child for which they expressed their inability. She further admitted in the cross-examination that A1 demanded additional dowry at Atmakur when the first child was born. She further admitted that after the second child was born, PW1 never came to their house. From the evidence of PWs.1 and 2, it is clear that the same is self-contradictory with regard to the demand made by the accused. PW7, in his evidence deposed that A1 harassed PW1 by demanding additional dowry after she gave birth to two female children. It is stated that when PW2, the mother of PW1, went to the house of A1 to bring PW1 to her house for delivery, A1 in the presence of his mother, demanded PW1 to bring one lakh rupees as PW1 is going to give birth to another female child. He further deposed that the elders who arranged the marriage between A1 and PW1 went to A1 and asked him to take back PW1 for

¶19

4 CPK,J CrlRC_1745_2006

¶20

marital life and A1 pushed them, and left with no other option, they returned to Kurnool. A reading of the evidence of PWs.1, 2 and 7 would reveal that what PW7 has spoken was never deposed by PWs.1 and 2. While the evidence of PW1 is to the effect that A1 harassed PW1 after the birth of the two children at Atmakur, the evidence of PW7 runs contrary to the same.

¶21

At one point of time, it is said that A1 harassed for additional dowry after she gave birth to two female children and on the other hand it is stated that A1 demanded additional dowry as PW1 was going to give birth to another female child. The evidence adduced is self-contradictory. Therefore, in my view, the trial Court rightly acquitted A1 for the offence punishable under Section 498-A IPC.

¶22

Now, coming to the offence punishable under Section 494 IPC, the evidence of PWs.2, 4, 5 and 7 is to the effect that they came to know about the second marriage of A1 with A2. PW3 is the person who is alleged to have performed the marriage of A1 with A2. In his evidence, he deposed that he was Purohit in Pandu Ranga Swamy Temple, Chittarigeri and PW6 is one Sailaja who is the member of the Managing Committee of the Temple. According to him, on 17.03.2002, one Sujatha and Gopal married in the temple and he performed the marriage as Pujari. While saying so, he deposed that he cannot identify the persons who got married on that day. He further admits in his cross-examination that he cannot say either the date of the marriage or the names of the couple. At the same time, he says that he fails to mention as to which Temple she is the member of the Managing Committee. His

¶23

5 CPK,J

¶24

CrlRC_1745_2006

¶25

evidence is silent even as to the place of the Temple, where the pooja was performed.

¶26

PW6 is another witness who is said to have given marriage certificate and she is in-charge of Sri Lakshmi Venkateswara Swamy Temple at Joharapuram where A1 and A2 were said to have been married on 17.03.2002 at 05:30 a.m. Except her oral evidence, there is no documentary evidence to show that she was either in-charge of the Temple or A1 married A2 in the Temple. Though the evidence states that she maintained a register showing the amounts received for the marriage, but the same is not produced in the Court.

¶27

However, the accused got examined one Bhupal Reddy as DW1 who is working as Fire Station Officer. In support of his plea of alibi his evidence shows that A1 attended duty on 16.03.2002 at 04:55 p.m. and he was on duty till 12:05 noon on 17.03.2002. He produced General Diary and Centry Relief Register, which were marked as Exs.D1 and D2 showing that A1 was on duty on 17.03.2002, which is the date of A1’s second marriage.

¶28

In K. Chinnaswamy Reddy vs State Of Andhra Pradesh¹ ,

¶29

the Hon’ble Apex Court held as under:-

¶30

“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

¶31

1 AIR 1962 SC 1788

¶32

6 CPK,J

¶33

CrlRC_1745_2006

¶34

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.

¶35

In Kalu Ahir And Others vs Ramdeo Ram² , the Hon’ble

¶36

Apex Court held as under:-

¶37

“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 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 recognised 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

2 AIR 1973 SC 2145

7 CPK,J

CrlRC_1745_2006

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”.

¶42

In State of Orissa Appellant v. Nakula Sahu and others

¶43

Respondents³ , the Hon’ble Apex Court held as under:

¶44

“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

¶45

3 AIR 1979 SUPREME COURT 663

¶46

CPK,J CrlRC_1745_2006

¶47

¶48

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”.

¶49

Having regard to the above facts and circumstances of the case, and this being a revision against acquittal, I see no reason to interfere with the impugned judgment.

¶50

Accordingly, the Criminal Revision Case is dismissed confirming the judgment dated 24.08.2006 in C.C.No. 445 of 2003 on the file of the Court of the Judicial Magistrate of First Class, Kurnool.

¶51

As a sequel, Miscellaneous Petitions, if any pending, shall stand disposed of as infructuous.

¶52

13.02.2020

¶53

bcj

V. Maheswari, v. Vanam Gopal and 3 Others

Case brief

What is this about?

What did the court decide?

V. Maheswari, v. Vanam Gopal and 3 Others

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

K.Venkata Rami Reddy, Prakasam Dt., Vs Kandi Lakshmi Devi, Krishna and 2 Otrs, Rep Pp.

Immidisetty Ramaiah, Vs the State of a.P., Rep by Pp.

Bhagyamma Vs the State of A.P. and Another

Syed Junaid Vs State of Ap

Abdul Mannan Vs Asif Ali

Venna Suri Babu Vs Takasi Venkata Ramesh Babu