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Smt.Shashi Sharma vs State Of U.P.And Ors. on 27 November, 2017

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH

Reserved

A.F.R.

Case :- CRIMINAL REVISION No. – 188 of 2005

Revisionist :- Smt.Shashi Sharma

Opposite Party :- State Of U.P.And Ors.

Counsel for Revisionist :- Mukul Rakesh

Counsel for Opposite Party :- Govt.Advocate,Ravi Shanker Tewari,Saurabh Lavania

Hon’ble Virendra Kumar-II,J.

1. Heard Mr. Mukul Rakesh, learned counsel for revisionist and Mr. I.B. Singh, learned Senior Counsel assisted by Shri Saurabh Lavania and Shri Ravi Shankar Tewari, learned counsel for opposite party no. 2 and 5.

2. This criminal revision has been preferred against impugned judgment of acquittal dated 20.10.2004 passed by Special Additional Chief Judicial (C.B.I.), Lucknow in Criminal Case No. 591 of 1999 (State Vs. Sanjeev Sharma and others) arising out of Case Crime No. 107 of 1994, under Sections 498A 506 I.P.C. and Section 3/4 of the Dowry Prohibition Act, Police Station Mahila, District Lucknow.

3. The trial court has acquitted all the accused persons/opposite parties of the charges framed against opposite party nos. 2 to 5 after conclusion of trial on merits.

4. This criminal revision was instituted with delay of 52 days. Vide order dated 27.1.2017 delay in preferring the instant revision has been condoned. During pendency of this criminal revision, opposite party no. 3 and 4 have expired. Therefore, revision has abated against them.

5. In grounds of revision, it is pleaded that revisionist/complainant lodged an F.I.R. on 21.6.1994 against opposite parties, which was registered on 4.7.1994. The Investigating Officer, after conclusion of investigation, submitted charge sheet before the trial court. It is further pleaded that eight witnesses were examined on behalf of prosecution during course of trial and these witnesses proved the charges framed against opposite parties. Two defence witnesses were also examined on behalf of accused-opposite parties.

6. It is further pleaded that trial court did not appreciate and properly analysed evidence adduced on behalf of the revisionist. The trial court has recorded wrong finding against law that demand of dowry made after the marriage was not material and revisionist was unable to prove this fact that she was harassed for demand of dowry and she was subjected to cruelty. The impugned judgment is based on conjectures and surmises. It is further submitted that the trial court has not interpreted legally and correctly definition of dowry. The trial court has not considered this fact that demand of dowry made after the marriage also comes within the category of dowry. On the basis of these grounds, it is prayed that impugned judgment and order dated 20.10.2004 be set aside.

7. Learned counsel for revisionist has relied upon a decision of Hon’ble Supreme Court in the case of Ashok Kumar Vs. State of Haryana reported in AIR 2010 SC 2839 and argued that the trial court has not considered the amended provisions of Section 2 of Dowry Prohibition Act. Hon’ble Supreme Court has held in paragraph no. 11 of the said judgment, which reads as under:-

“11. From the above definition it is clear that, ‘dowry’ means any property or valuable security given or agreed to be given either directly or indirectly by one party to another, by parents of either party to each other or any other person at, before, or at any time after the marriage and in connection with the marriage of the said parties but does not include dower or mahr under the Muslim Personal Law. All the expressions used under this Section are of a very wide magnitude. The expressions ‘or any time after marriage’ and ‘in connection with the marriage of the said parties’ were introduced by amending Act 63 of 1984 and Act 43 of 1986 with effect from 02.10.1985 and 19.11.1986 respectively. These amendments appear to have been made with the intention to cover all demands at the time, before and even after the marriage so far they were in connection with the marriage of the said parties. This clearly shows the intent of the legislature that these expressions are of wide meaning and scope. The expression ‘in connection with the marriage’ cannot be given a restricted or a narrower meaning. The expression ‘in connection with the marriage’ even in common parlance and on its plain language has to be understood generally. The object being that everything, which is offending at any time i.e. at, before or after the marriage, would be covered under this definition, but the demand of dowry has to be ‘in connection with the marriage’ and not so customary that it would not attract, on the face of it, the provisions of this section.”

8. Learned counsel for revisionist has further argued that trial court has committed manifest error of law by not considering amended definition of dowry. The findings recorded by the trial court is against evidence and law.

9. In the counter affidavit filed on behalf of opposite parties nos. 2 and 5, it is averred that opposite party no. 3 late Ved Prakash expired on 3.3.2008 and opposite party no. 4 expired on 8.8.2008. The marriage of opposite party no. 2 was solemnized with revisionist on 19.4.1993. The revisionist is residing with her parents since 8.6.1994. She was not expelled from her matrimonial home, after harassment for dowry. The trial court has recorded finding vide impugned judment dated 20.10.2004 that the opposite parties have relied upon provisions of sub-Section 3 and 4 of Section 401 Cr.P.C. and pleaded that revisional court cannot convert a finding of acquittal into one of conviction. Likewise where an appeal lies and no appeal is brought, no proceeding by way of revision shall be entertained at the instance of the party, who could have appealed.

10. It is further contended in counter affidavit that the revisionist was aware of the recommendation made by Senior Prosecuting Officer for filing an appeal against the impugned judgment and order. She is not rustic and illiterate lady. She is a law graduate and registered with Bar Council of U.P. from two decades. According to provisions of proviso to Section 372 Cr.P.C. as well as 378 Cr.P.C., revisionist ought to have filed an appeal against impugned judgment. Therefore, this revision is not maintainable and the same is liable to be dismissed.

11. It is further contended that family court awarded minimum maintenance under Section 125 Cr.P.C., which was enhanced from Rs. 300/- per month to Rs. 500/- per month vide order dated 25.10.1995 and the same has been regularly remitted by opposite party no. 2 to the revisionist. Likewise, family court had allowed payment of maintenance pendente lite under Section 24 of the Hindu Marriage Act also. She was allowed litigation expenses at the rate of Rs. 1,500/- and maintenance to the tune of Rs. 400 per month. The same was paid to her regularly, barring a few unintentional defaults. The opposite parties in paragraph-10 of counter affidavit has mentioned details of litigation initiated by the revisionist and pleaded that revisionist has unscrupulously abused the process of law to subserve her own vested social and financial interests.

12. It is further mentioned that the revisionist has taken refuge under Section 9 of the Hindu Marriage Act to pre-empt, protract and scuttle the proceedings of Case No. 80/98 preferred under Section 13 and Case No. 591 of 1999 under Section 498-A, 506 I.P.C. and Section 3/4 of the Dowry Prohibition Act. The revisionist never had any intention to restitute her conjugal rights with opposite party no. 2. The opposite party no. 2 also filed counter claim under Section 23 A on 2.3.2002 to oppose the relief sought by revisionist under Section 9 of the Hindu Marriage Act. The revisionist herself made cruelty and willful desertion. She is deliberately misleading the Court by highlighting her penury and indigence. Had she been so impoverished, she would not have woven the aforesaid cobweb of prolonged matrimonial litigation against the opposite no. 2 in the family court as well the criminal litigation in the magisterial court against opposite party no. 2.

13. It is further contended that the State has not filed an appeal against the impugned judgment and order, because it did not find any valid cause or ground to impugn the said judgment and order. Therefore decided against moving in appeal. The revisionist being an urbanite and a qualified law graduate cannot take recourse to illogical excuse of having been misled and being ill-informed while seeking her appropriate remedy promptly, especially when she was required only to monitor the progress of the proposed appeal by the State.

14. In support of his submission, learned counsel for opposite parties has relied upon a decision in the case of Venkatensan Vs. Rani and another reported in (2013) 4 SCC 207 in which Hon’ble Supreme Court in paragraph no. 8 has held as under:-

8. 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 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.

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.

9. 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.

10. The above consideration would go to show that the revisional jurisdiction of the High Courts while examining an order of acquittal is extremely narrow and ought to be exercised only in cases where the Trial Court had committed a manifest error of law or procedure or had overlooked and ignored relevant and material evidence thereby causing miscarriage of justice. Re-appreciation of evidence is an exercise that the High Court must refrain from while examining an order of acquittal in the exercise of its revisional jurisdiction under the Code. Needless to say, if within the limited parameters, interference of the High Court is justified the only course of action that can be adopted is to order a re-trial after setting aside the acquittal. As the language of Section 401 of the Code makes it amply clear there is no power vested in the High Court to convert a finding of acquittal into one of conviction.

15. In the case of Bindeshwari Prasad Singh alias B.P. Singh and others Vs. in State of Bihar (Now Jharkhand) and another reported in (2002) 6 SCC 650, Hon’ble Supreme Court in paragraph nos. 12, 14 and 15 has held as under:-

“12. We have carefully considered the material on record and we are satisfied that the High Court was not justified in re-appreciating the evidence on record and coming to a different conclusion in a revision preferred by the informant under Section 401 of the Code of Criminal Procedure. Sub-section (3) of Section 401 in terms provides that nothing in Section 401 shall be deemed to authorize a High Court to convert a finding of acquittal into one of conviction. The aforesaid sub-section, which places a limitation on the powers of the revisional court, prohibiting it from converting a finding of acquittal into one of conviction, is itself indicative of the nature and extent of the revisional power conferred by Section 401 of the Code of Criminal Procedure. If the High Court could not convert a finding of acquittal into one of conviction directly, it could not do so indirectly by the method of ordering a re-trial. It is well settled by a catena of decisions of this Court that the High Court will ordinarily not interfere in revision with an order of acquittal except in exceptional cases where the interest of public justice requires interference for the correction of a manifest illegality or the prevention of gross miscarriage of justice. The High Court will not be justified in interfering with an order of acquittal merely because the trial court has taken a wrong view of the law or has erred in appreciation of evidence. It is neither possible nor advisable to make an exhaustive list of circumstances in which exercise of revisional jurisdiction may be justified, but decisions of this Court have laid down the parameters of exercise of revisional jurisdiction by the High Court under Section 401 of the Code of Criminal Procedure in an appeal against acquittal by a private party. (See 1951 Cri L J 510 D. Stephens v. Nosibolla; [1963] Cr L J 8, K.C. Reddy v. State of Andhra Pradesh 1973 2 SCC 583 Akalu Ahir and Ors. v. Ramdeo Ram AIR 1975 SC 1854 Pakalapati Narayana Gajapathi Raju and Ors. v. Bonapalli Peda Appadu and Anr. and 1968 Cri L J 665 Mahendra Pratap Singh v. Sarju Singh).

14. We are, therefore, satisfied that the High Court was not justified in interfering with the order of acquittal in exercise of its revisional jurisdiction at the instance of the informant. It may be that the High Court on appreciation of the evidence on record may reach a conclusion different from that of the trial court. But that by itself is no justification for exercise of revisional jurisdiction under Section 401 of the Code of Criminal Procedure against a judgment of acquittal. We cannot say that the judgment of the trial Court in the instant case was perverse. No defect of procedure has been pointed out. There was also no improper acceptance or rejection of evidence nor was there any defect of procedure or illegality in the conduct of the trial vitiating the trial itself. At best the High Court thought that the prosecution witnesses were reliable while the trial court took the opposite view. This Court has repeatedly observed that in exercise of revisional jurisdictional against an order of acquittal at the instance of a private party, the Court exercises only limited jurisdiction and should not constitute itself into an appellate court which has a much wider jurisdiction to go into questions of facts and law, and to convert an order of acquittal into one of conviction. It cannot be lost sight of that when a re-trial is ordered, the dice is heavily loaded against the accused, and that itself must caution the Court exercising revisional jurisdiction. We, therefore, find no jurisdiction for the impugned order of the High Court ordering re-trial of the appellants.

15. The High Court has noticed the fact that the State had preferred an appeal against the acquittal of the appellants. That appeal was dismissed by the High Court on the ground of limitation. In principle that makes no difference, because the dismissal of the appeal even on the ground of limitation is a dismissal for all purposes. As observed earlier, the jurisdiction of the High Court in dealing with an appeal against acquittal preferred under Section 374 of the Code of Criminal Procedure is much wider, than the jurisdiction of revisional court exercising jurisdiction under Section 401 of the Code of Criminal Procedure against an order of acquittal at the instance of a private party. All grounds that may be urged in support of the revision petition may be urged in the appeal, but not vice versa. The dismissal of an appeal preferred by the State against the order of acquittal puts a seal of finality on the judgment of the trial court. In such a case it may not be proper exercise of discretion to exercise revisional jurisdiction under Section 401 of the Code of Criminal Procedure against the order of acquittal at the instance of a private party. Exercise of revisional jurisdiction in such a case may give rise to an incongruous situation where an accused tried and acquitted of an offence, and the order of acquittal upheld in appeal by its dismissal, may have to face a second trial for the same offence of which he was acquitted.”

16. The revisionist has filed rejoinder affidavit and supplementary affidavit reiterating her earlier contentions.

17. I have perused trial court’s record of Criminal Case No. 591 of 1999 (State Vs. Sanjeev Sharma). As per prosecution version, marriage of complainant Smt. Shashi Sharma was solemnized on 19.4.1993 with opposite party no. 2-Dr. Sanjeev Sharma. After some months of marriage, opposite parties subjected her with cruelty for demand of dowry. The dispute regarding demand of dowry was aroused at the time of marriage also. The opposite parties demanded amount of Rs. 50,000/-, Fridge, Cooler, golden chain and VCR and compelled to purchase house for them. It is also mentioned in the F.I.R. that sister-in-law of complainant Dr. Piyusha Sharma was unmarried and opposite parties were residing in a rented small house. The complainant apprised her parents about demand of dowry by opposite parties. During the period of one year, her parents visited her matrimonial home, but they did not disclose her in-laws that the complainant apprised them about demand of dowry.

18. It is further mentioned in F.I.R. that the complainant visited her parental home on the eve of holi. When she returned back at her matrimonial home then opposite parties again harassed for demand of dowry. Her father-in-law also abused and insulted. She tried to convince her husband, but he did not pay any heed to her request. She called her parents due to mal-treatment made by opposite parties on 8.4.1994. The opposite parties told her that second marriage of opposite parties no. 2 would be solemnized and he will not contact her. The complainant was compelled to leave her matrimonial home on 8.6.1994 and she is residing with her parents. Her parents contacted opposite party no. 2 on 20.6.1994 at 11:00 a.m. but he misbehaved with her parents. The complainant and her parents were called at Police Station Madion on 20.6.1994. The incident of threatening opposite party no. 2 for his life was found false and no action was taken by the police.

19. The trial court took cognizance on the charge sheet submitted by Investigating Officer for offence punishable under Section 498-A 506 I.P.C. and Section 3/4 of the Dowry Prohibition Act against the opposite parties. The trial court framed charges against them for offences punishable under Sections 498-A 506 I.P.C. and 3/4 of the Dowry Prohibition Act.

20. PW-1 complainant Smt. Shashi Sharma, PW-2 Abrar Khan, PW-3 Ram Singh Yadav, PW-4 Lavkush Jaiswal, PW-5 Brij Mohan Sharma, PW-6 Surendra Mohan Sharma, PW-7 Smt. Sushila Sharma, PW-8 S.I. Sharda Sakvar were examined on behalf of prosecution during trial.

21. DW-1 Arun Verma, DW-2 Umesh Kumar Srivastava were examined as defence witness on behalf of opposite parties.

22. The trial court has recorded statements of opposite parties under Section 313 Cr.P.C. They denied the allegations made against them and stated that they have falsely been implicated due to enmity. The trial court vide impugned judgment dated 20.10.2004 has acquitted all the opposite parties of the charges framed against them.

23. I have perused impugned judgment and order dated 20.10.2004. The trial court has analysed evidence adduced by witnesses produced on behalf of prosecution as well as defence witnesses produced on behalf of opposite parties. The trial court has also perused letter dated 12.6.1994 (Ex. Ka-4) of opposite party no. 2. This letter was written by opposite party no. 2 in reply of letter written by complainant Smt. Shashi Sharma. The contents of letter has been quoted and appreciated by trial court and a finding was recorded that this letter discloses grievance of the complainant that the opposite party no. 2 did not extend due love and regard to her. It was found by trial court that this letter, written by complainant, did not disclose demand of any dowry or harassment or threat for her life based on demand of dowry.

24. The trial court has considered argument put-forth on behalf of accused persons regarding demand of dowry pertaining to offence punishable under Sections 498-A 506 I.P.C. and Section 3/4 of the Dowry Prohibition Act. The trial court has also perused letter (Ex. Ka-5) written by opposite party no. 2 Dr. Sanjeev Sharma to Inspector In-charge Mahila, Police Station Hazratganj and letter Ex. Ka-8 written by Sri Ved Prakash Sharma and found that Ved Prakash Sharma (since dead) advised the complainant to mend her conduct and she left her matrimonial home on 20.6.1994 on instigation of her mother. It was also found that father of complainant was not examined before the trial court, whereas his name was mentioned in the charge sheet.

25. The trial court has appreciated evidence of PW-1 complainant Smt. Shashi Sharma and discarded evidence of complainant regarding fact that on 8.6.1994 opposite parties hatched conspiracy to eliminate her. The trial court has also recorded finding that her parents were satisfied with the conduct and behaviour of opposite parties. The marriage was settled and there was no dispute regarding agreement made for settlement of marriage. PW-1 complainant has accepted in her cross examination conducted on 17.4.2000 that on instigation of parents and sister of opposite party no. 2, she was harassed by her husband and she has also accepted that she did not mention in her F.I.R. about the list of goods/articles. She prepared this list afterwards, therefore, evidence of complainant was discarded in this regard. The trial court found material contradictions in the statement made by complainant during course of trial, therefore, finding was recorded that charges framed against the accused persons could not be proved by the prosecution.

26. The trial court has also appreciated the evidence of PW-2 Mohd. Abrar, who adduced hearsay evidence about demand of dowry placed by father-in-law of the complainant at the time of marriage. He was apprised by sister of complainant about harassment made by opposite parties. Therefore, the evidence of PW-2 was not accepted also. The evidence of PW-3 Ram Singh Yadav was analysed by the trial court and it was found that the complainant when visited her parental house, he heard that she apprised her parents about harassment made by her in-laws. Therefore, this witness also adduced hearsay evidence about the cruelty made by opposite parties to complainant for demand of dowry. Specific finding has been recorded by trial court that PW-3 is not the eyewitness of such incident. Likewise PW-4 Lavkush also accepted this fact that no demand of dowry was made by the opposite parties in his presence, whereas PW-4 was tenant of parental house of the complainant. Therefore, his evidence was analysed by trial court properly.

27. The trial court has also analysed evidence of PW-5 Brij Mohan Sharma, who is brother-in-law (Jeeja) of the complainant. He apprised the Court about the character of Dr. Sanjeev Sharma. He came to know about demand of dowry from the complainant and her family members. He has accepted this fact that marriage of the complainant was solemnized in conducive environment. Some dispute arose, which was settled at the time of marriage. During his cross- examination, PW-5 has accepted this fact that he came to know about demand of dowry through Smt. Shashi Sharma and her family members. He has also stated that marriage was solemnized happily. He has no knowledge about the fact that demand of dowry was reduced in right or not. He had cordial relations with Dr. Sanjeev Sharma and his marriage was solemnized after satisfaction of both the parties.

27. PW-6 Surendra Mohan Sharma is elder brother of PW-5, who has also accepted this fact that he met with Dr. Sanjeev Sharma at parental house of complainant. He casually visited at this point of time. There was no function. This meeting was held in conducive environment. He visited house of Dr. Sanjeev Sharma to advise him and after one and half month to two months, the complainant went at her parental house.

29. PW-6 has accepted during his cross examination that he does not know what was agreed for settlement of marriage. Nothing was settled in his presence. He did not accompany the family members of the complainant, when her marriage was settled. In his examination-in-chief, this witness has stated that on 19.4.1993, at the time of Vidai, Shri Ved Prakash placed demand of Rs. 50,000/-, Fridge, VCR and golden chain etc. He along with Banke Lal, father of complainant and other relatives convinced Shri Ved Prakash and then complainant went at her matrimonial home. During his cross examination, he has accepted that after Vidai, he visited parental home of complainant after 15-20 days and met with Dr. Sanjeev Sharma in conducive environment. Therefore, evidence of PW-6 was also properly analysed by the trial court.

30. The trial court has alanysed evidence of PW-7 Sushila Sharma, who is mother of complainant and recorded finding that she is adducing evidence being interested witness. The trial court has also recorded finding that the complainant in her cross examination dated 27.6.2000 has accepted that the accused has not placed any demand of dowry in any letter written by him. The trial court has also recorded finding that the fact of harassment of the complainant made by the opposite parties for demand of dowry could not be proved by the prosecution, because such evidence was not adduced that accused persons/opposite parties assaulted the revisionist.

31. As far as, it is argued by learned counsel for revisionist that the trial court has quoted unamended definition of dowry as per section 2 of Dowry Prohibition Act, 1961 and relied upon case law of Ramesh Chandra and another Vs. Stat of U.P. and others reported in 1992 CrLJ 1444 and recorded wrong finding that demand of dowry placed after the marriage cannot come within the purview of Section 498-A I.P.C. and 3/4 of the Dowry Prohibition Act.

32. Learned counsel for revisionist has also relied upon case law of Ashok Kumar (Supra) and argued that demand of dowry placed after solemnization of marriage is also covered under definition of Dowry to provision of Section 2 of Dowry Prohibition Act.

33. PW-6 has specifically stated that demand of dowry disclosed in F.I.R. by the victim/complainant was made at the time of her Vidai and Shri Ved Prakash was convinced by father of victim and other relatives. There fore, there was no occasion for trial court to observe that this demand was made by opposite parties after marriage. The argument of learned counsel for revisionist is of no help for revisionist regarding unamended definition of dowry.

34. It is pertinent to mention here that learned counsel for opposite parties has relied upon a decision in the case of Bindeshwari Prasad Singh (supra) and argued that High Court will not be justifying in interfering with an order of acquittal merely, because the trial court has taken wrong view of law or erred in appreciation of evidence. I have mentioned it at proper place, the exposition of law propounded by Hon’ble Supreme Court in this case.

35. On the other hand, it is relevant to mention here that trial court has recorded separately specific finding that prosecution could not prove demand of dowry on the basis of letters written by opposite party no. 2-Dr. Sanjeev Sharma to the complainant or on the basis of evidence adduced by the witnesses. The trial court has analysed and evaluated the evidence of witness produced on behalf of the prosecution and finding of fact cannot be set aside by exercising revisional jurisdiction by this Court by re-appreciating the evidence recorded before the trial court. A co-ordinate Bench of this Court in Criminal Revision No. 281 of 2003 (Balendra Bhushan Singh Vs. Shekhar Singh and others) decided on 28.7.2017 has considered scope of revisional jurisdiction and considered case law as follows:-

“7. To answer the questions that have arisen in the present case, as noticed at the very outset, the extent and ambit of the revisional jurisdiction of the High Court, particularly in the context of exercise thereof in respect of a judgment of acquittal, may be briefly noticed. The law in this regard is well settled by a catena of decisions of Apex 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.

8. 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.

9. 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.

While considering the matter in Bansi Lal and others versus Laxman Singh 1986 (3) Supreme Court Cases 444, the court observed in para 9 as follows:-

“9. Even in an appeal against an order of acquittal no interference will be made with the judgment of the trial court except in rare and exceptional cases, where there has been some manifest illegality in the approach to the case or the appreciation of the evidence or where the conclusion of fact-recorded by the Trial Judge is wholly unreasonable so as to be liable to be characterized as perverse and there has been a resultant miscarriage of justice. The revisional jurisdiction of the High Court while dealing with an order of acquittal passed by the trial court is more narrow in its scope. 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 the acquittal and direct a retrial of the acquitted accused. From the very nature of this power it should be exercised sparingly and with great care and caution. In K.C. Reddy v. State of Andhra Pradesh [1963]3SCR412 , this Court had occasion to consider the scope of the revisional jurisdiction conferred on the High Court in relation to orders of acquittal passed by the trial court and after referring to two earlier decisions of this Court reported in D. Stenbens v. Nosibolla 1951CriLJ510 and Jogendranath Jha v. Polailal Biswas [1951]2SCR676 the legal position was explained thus:

These two cases clearly lay down the limits of the High Court’s jurisdiction to interfere with an order of acquittal in revision; in particular, Jogendranath Jha’s case stresses that it is not open to a High Court to convert a finding of acquittal into one of conviction in view of the provisions of Section 439(4) and that the High Court cannot do this even indirectly by ordering re-trial. What had happened in that case was that the High Court reversed pure findings of facts based on the trial court’s appreciation of evidence but formally complied with Sub-section (4) by directing only a re-trial of the appellants without convicting them, and warned that the court retrying the case should not be influenced by any expression of opinion contained in the judgment of the High Court. In that connection this Court observed that there could be little doubt that the dice was loaded against the appellants of that case and it might prove difficult for any subordinate judicial officer dealing with the case to put aside altogether the strong views expressed in the judgment as to the credibility of the prosecution witness and the circumstances of the case in general.

36. On the basis of above discussions, and exposition of law mentioned above, scope of revisional jurisdiction is very narrow and while exercising jurisdiction under Section 401 Cr.P.C., judgment of acquittal cannot be converted in conviction. From the pleadings of this revision, it revealed that a proposal for appeal was recommended by SPO to the Government and revisionist/complainant has accepted that this appeal was not preferred by the State.

37. I have also perused the provisions of Section 401 Cr.P.C. which prescribes as follows:-

401. High Court’ s Powers of revisions.

(1) In the case of any proceeding the record of which has been called for by itself or Which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a Court of Appeal by sections 386, 389, 390 and 391 or on a Court of Session by section 307 and, when the Judges composing the Court of revision are equally divided in opinion, the case shall be disposed of in the manner provided by section 392.

(2) No order under this section shall be made to the prejudice of the accused or other person unless he has had an opportunity of being heard either personally or by pleader in his own defence.

(3) Nothing in this section shall be deemed to authorise a High Court to convert a finding of acquittal into one of conviction.

(4) Where under this Code an appeal lies and no appeal is brought, no proceeding by way of revision shall be entertained at the instance of the party who could have appealed.

(5) Where under this Code tan appeal lies but an application for revision has been made to the High Court by any person and the High Court Is satisfied that such application was made under the erroneous belief that no appeal lies thereto and that it is necessary in the interests of justice so to do, the High Court may treat the application for revision as a petition of appeal and deal with the same accordingly.

38. Provision of Section 401 (4) Cr.P.C. provides that where under this Code an appeal lies and no appeal is brought, no proceeding by way of revision shall be entertained at the instance of the party who could have appealed. Provision of Section 401 (3) Cr.P.C. provides that nothing in this section shall be deemed to authorise a High Court to convert a finding of acquittal into one of conviction.

39. It is relevant to mention here that during the proceedings for condonation of delay, it was submitted by opposite parties that divorce between revisionist and opposite party no. 2 has been granted on 14.5.2014. On the appreciation of evidence, the trial court has also recorded finding that revisionist is residing from 8.6.1994 at her parental house after solemnization of her marriage on 19.4.1993 with opposite party no. 2.

40. Learned counsel for opposite parties has also submitted that revisionist is residing with her own will at her parental house. Since the revisionist was not able to prove her harassment for demand of dowry by opposite parties, therefore, prima facie inference may be drawn that revisionist is residing with her own will at her parental home.

41. Therefore, no ground is available to interfere with the impugned judgment of acquittal by the trial court. The trial court has appreciated the evidence adduced on behalf of prosecution and found that charges framed against the opposite parties could not be proved by the prosecution.

42. The case law cited by learned counsel for revisionist is of no help for the complainant/revisionist.

43. This revision lacks merits, deserves to be dismissed and is hereby dismissed.

Order Date :- 27.11.2017

Virendra

 

 

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