Dismissed

Smt. B.Maheswari v. the State of A.P. and Another

Andhra Pradesh HC14 Feb 2020CRLRC/647/2007

Case brief

AI extract

What is this about?

In Criminal Revision Case No. 647 of 2007, the High Court dismissed the petitioner's revision against an acquittal of the respondent under Section 498A IPC. The court found discrepancies in prosecution evidence and held that the trial court correctly acquitted the respondent.

What did the court decide?

Criminal Revision Case dismissed; acquittal of respondent affirmed; pending miscellaneous petitions closed.

Smt. B.Maheswari Vs the State of A.P. and Another — Domestic Violence | Andhra Pradesh HC (2020)

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THE HON’BLE SRI JUSTICE C.PRAVEEN KUMAR

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Criminal Revision Case Nos. 647 of 2007

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ORDER:

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As there was no representation on 27.01.2020, the matter was directed to be listed on 03.02.2020 under the caption ‘for dismissal’. Even on 11.02.2020, there was no representation on behalf of the petitioner. Hence, it was directed to be listed under the same caption on 14.02.2020. Even today there is no representation on behalf of the petitioner. Hence, perused the record and heard the learned Public Prosecutor.

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The present Criminal Revision Case is filed under Sections 397 and 401 of Cr.P.C., challenging the Judgment of Acquittal, dated 18.12.2006, passed in Crl. A. No. 25 of 2006 by the IV Additional Sessions Judge, Kurnool.

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Originally, the respondent/respondent and three others were tried in C.C. No. 194 of 2004 on the file of the Special Judicial Magistrate of I Class for (Prob. & Excise), Kurnool, for the offence punishable under Section 498A IPC. The Trial Court found the respondent/respondent guilty for the offence punishable under Section 498A IPC and sentenced him to undergo Simple Imprisonment for a period of six months and to pay fine of Rs.1,000/-, in default, to undergo Simple Imprisonment for a period of three [03] months while acquitting A2 to A4 for the said

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offence. Challenging the same, Crl. A. No. 25 of 2006 was filed by A1. By its Judgment, dated 18.12.2006, the learned IV Additional Sessions Judge, Kurnool, acquitted the respondent setting aside the conviction passed in C.C. No. 194 of 2004. Challenging the said Order, the present Revision came to be filed by the informant.

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1. The facts, in issue, are as under:

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i. The petitioner is the wife of the respondent herein. The marriage between the petitioner and respondent was solemnized on 19.04.2000 as per Hindu customs and traditions at Medamvari Chowltry, Kurnool. Her parents presented cash of Rs.2,00,000/- and 1 ½ tulas gold to the respondent towards dowry and five tulas of gold ornaments to petitioner.

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ii. On 03.09.2000, the parents of the petitioner deposited an amount of Rs.1,40,000/- in the joint name of the petitioner and the respondent in Central Bank, Kurnool. After five months, the respondent withdrew the said deposited amount from the bank. One year thereafter, the respondent started harassing the petitioner and demanded her to bring additional dowry amount of Rs.25,000/-. Though her mother gave Rs.25,000/to respondent on 15.09.2001, the respondent continued to harass her for additional dowry of Rs.1,00,000/- and if she fails to bring the amount, he asked her to give divorce. When the petitioner refused to give

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divorce, she was beaten by the respondent and sent back to her parent’s house retaining her educational certificates i.e., S.S.certificate, Intermediate certificate, Typewriting certificates.

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Basing on a report from the petitioner, a case in Crime No. 98 of 2003 came to be registered for the offence punishable under Section 498A IPC, which was taken on file as C.C. No. 194 of 2004 by the Special Judicial Magistrate of First Class for (Prob. & Excise), Kurnool.

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On appearance, copies of documents as required under Section 207 Cr.P.C., came to be furnished. Basing on the material available on record, Charge as referred to above came to be framed, read over and explained to the respondent, to which, he pleaded not guilty and claimed to be tried.

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In support of its case, the prosecution examined PW1 to PW5 and got marked Ex.P1 to Ex.P4. After completion of prosecution evidence, the respondent was examined under Section 313 Cr.P.C. with reference to the incriminating circumstances appearing against him in the evidence of prosecution witnesses, to which he denied and got examined DW1 on his behalf.

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The main ground urged by the counsel for the petitioner is that, the evidence of PW1 to PW4 is consistent with regard to the demand made by the respondent for cash of Rs.1,00,000/- and

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also PW2 paying Rs.25,000/- to respondent. However, in Appeal, the Appellate Court re-appreciated the evidence on record and held that the evidence of PW1 to PW4 cannot be accepted.

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Keeping these circumstances in the background, it is now to be decided whether the evidence of PW1 to PW4 can be accepted.

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PW1 in her evidence deposed that, at the time of marriage, her parents gave Rs.3,00,000/- & 1½ tulas of gold to the respondent and 5 tulas of gold ornaments to her. She further deposed that, at first they lived at Pinnapuram and later shifted their family to Nandayal. At Nandayal, the respondent started harassing her and demanded her to bring additional dowry of Rs.1,00,000/- and that if she fails to bring the dowry, he threatened to give her divorce. She also deposed that, on 03.09.2000, her parents took a fixed deposit of Rs.1,40,000/[Rs.70,000/- & Rs.70,000/-] in Central Bank, Kurnool, in the joint name of herself and respondent. She further deposed that, on 15.09.2000, her mother gave Rs.25,000/- to the respondent.

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On a scrutiny of the evidence of PW1, there emerge material discrepancies. PW1 in her cross-examination admits that, by the time of her marriage, her father was suffering with ill-health and her brother was working as laborer on daily wages in Electricity Department. Her mother [PW2] is a housewife. She further admits that, her parents have no source of income, except pension of her father, which is hardly sufficient for their maintenance. Therefore,

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the evidence of PW1 that, her mother [PW2] gave Rs.3,00,000/- & 1 ½ tulas of gold to the respondent and 5 tulas of gold ornaments to the petitioner; took a fixed deposed of Rs.1,40,000/- [Rs.70,000/& Rs.70,000/-] in Central Bank, Kurnool, in the joint name of the petitioner and respondent; and gave Rs.25,000/- to the respondent on 15.09.2000 cannot be accepted at its face value. In-fact, it is not clearly established by cogent evidence as to why PW2 took a fixed deposit of Rs.1,40,000/- in the joint name of the petitioner and the respondent, when the respondent demanded Rs.1,00,000/-. Furthermore, the evidence reveals that, it was the respondent who took fixed deposit of Rs.1,40,000/- in the joint name of the petitioner and respondent one year and nine months of their marriage.

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PW2 is the mother of PW1. Her evidence is to the effect that, she is a housewife and her husband is a pensioner, suffering with sickness. She admits that, they have no source of income, except the pension amount of her husband, which is hardly sufficient for maintenance of their family. So, presenting of dowry of Rs.3,00,000/- at the time of marriage and giving of additional dowry of Rs.25,000/- by her to the respondent cannot be believed unless supported by an independent witness.

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PW3 is the grandfather of PW1 while PW4 is their neighbor. Their evidence is that, PW2 gave Rs.2,00,000/- & 1 ½ tulas of gold to the respondent and 5 tulas of gold ornaments to PW1. They

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further deposed that, the respondent started harassing PW1 and demanded her to bring additional dowry of Rs.1,00,000/-. Their evidence is hearsay, as they never witnessed the respondent demanding additional dowry amount from PW1. Therefore, not much credence can be given to their evidence.

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It is to be noted that, this is a revision against an order of acquittal passed by the Trial Court. The scope of interference in the revision against acquittal as held by the Hon’ble Apex Court in K.Chinnaswamy Reddy vs State Of Andhra Pradesh¹ , is as under:-

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“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 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.

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

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Apex Court held as under:-

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“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

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1 AIR 1962 SC 1788

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2 AIR 1973 SC 2145

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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 respondent. 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 respondent 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 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”.

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16) In State of Orissa Appellant v. Nakula Sahu and others

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

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“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 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”.

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In view of the evidence of the witnesses, a doubt arises as to whether there was any demand made by the respondent subjecting PW1 to cruelty. Except the oral testimony of PW1 and PW2, there is no documentary proof or corroborative oral evidence to prove that the respondent subjected PW1 to cruelty by demanding her to bring additional dowry. Considering, the inconsistency and contradictions in the evidence of the witnesses, the Court below was right in acquitting the respondent by giving benefit of doubt, which findings in my view warrants no interference by this court.

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3 Air 1979 Supreme Court 663

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Hence, I see no reason to interfere with Judgment of Acquittal, dated 18.12.2006, passed in Crl. A. No. 25 of 2006 by the IV Additional Sessions Judge, Kurnool acquitting the respondent for the offence punishable under Section 498-A IPC.

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