IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 25 - 04 – 2011 CORAM: THE HONOURABLE MS.JUSTICE R.MALA Crl.R.C.No.1472 of 2007 & M.P.No.1 of 2007 Ms.Sushsma .. Petitioner/Complainant Vs. 1. Yoganand 2. Premalatha 3. Balagurunathan 4. State rep. by Inspector of Police, W8 All Women Police Station, Sembium Circle, Kilpauk, Chennai-600 010. (Crime No.14 of 2004) .. Respondents/Accused 1 to 3 Complainant Criminal Revision Case against the order dated 28.5.2007 in C.C.No.17573 of 2004 on the file of the Chief Metropolitan Magistrate, Chennai-8. For petitioner : Mr.S.Ashok Kumar, Senior Counsel for Mr.A.Sasidharan For respondents: Mr.K.Sukumaran for RR-1 to 3 Mr.S.Rajendiran, Govt. Advocate (Crl. Side) for R-4 ORDER The Crl.R.C. is filed against the order dated 28.5.2007 in C.C.No.17573 of 2004, on the file of the Chief Metropolitan Magistrate, Chennai-8, acquitting respondents 1 and 3/A1 and A3 from the offence under Section 498-A IPC and Section 4 of the Dowry Prohibition Act and respondent 2/A2 from Section 498-A and 406 IPC and Section 4 of the Dowry Prohibition Act. 2. The skeleton of the private complaint is as follows: The marriage between P.W.1 Sushma and A1 Yoganand was performed on 23.5.2002. At the time of marriage, 3 bed room flat at T.Nagar consisting of 1700 Sq.FT, worth Rupees 35 lakhs as on the date of complaint, one plot in Palavakkam with lands of an extent of one ground worth Rs.5 lakhs as on the date of complaint, gold jewellery totalling 570 grams worth Rs.3.25 lakhs, diamond jewellery (diamond https://hcservices.ecourts.gov.in/hcservices/ necklace, diamond ear rings) etc., totalling 5.16 carat worth Rs.2 lakhs (which was given to A2 on the occasion of marriage and retained by her), Rs.4 lakhs in Fixed Deposit, Federal Bank shares and LIC Policy worth Rs.2.5 lakhs and silver items, wrist watches and clothes, to the value of about Rs.3,30,000/-, were given and the marriage was performed at the cost of Rs.10 lakhs and after marriage, both P.W.1 and A.1 were residing at their parental home and then they went to A.1's house where A.2 and A.3 demanded the jewels and other properties for being transferred in A.3's name and they have also demanded Rs.10 lakhs for purchasing a house and settle it in the name of A.1's sister. Then, A.1 left for America on 13.6.2002 along with P.W.1. At that time, A.1 ill-treated P.W.1 and on 9.10.2002, he demanded Rs.10 lakhs as dowry and he strangulated her, due to which, she became unconscious, but he made a propaganda as if she attempted to commit suicide. On 26.12.2002, they have returned back to Chennai for attending marriage of her sister on 2.2.2002, and A-2 borrowed P.W.1's diamond necklace for wearing in the marriage and she has not returned back the same. On 9.2.2003, A1 went to States and at that time, he demanded P.W.1 to transfer the immovable property in the name of A.3 and hand over all the jewels and other Streedhana properties given to her and only on giving the same, she could be permitted to go along with A.1 and reside with her husband. On 23.5.2003, on the wedding day, when she made a call to her husband, at that time, she was abused by her husband and therefore, a Panchayat was convened through P.W.5, but A.1 refused to attend the same, but he filed a petition for divorce and hence, the revision petitioner/P.W.1 preferred a private complaint to punish the respondents 1 to 3 for the offences under Sections 498-A and 406 IPC and also under Section 4 of the Dowry Prohibition Act. 3. The trial Court, after taking the private complaint on file and since the offences are cognizable, furnished the copies of documents to the respondents 1 to 3/accused and since they pleaded not guilty, the trial Court examined P.Ws.1 to 6 and marked Exs.P-1 to P-10 and acquitted respondents 1 to 3/accused stating that the prosecution has not proved the private complaint, which is a counter-blast of the divorce petition filed by her husband/A1, against which, the present Crl.R.C. has been preferred by the revision petitioner/P.W.1/complainant. 4. Challenging the impugned order of acquittal, learned Senior Counsel appearing for the revision petitioner/P.W.1/complainant submitted that the trial Court has not properly appreciated the evidence and dismissed the case stating that there is a delay of two years in preferring the complaint. Since it is a matrimonial issue, the revision petitioner/P.W.1/complainant wanted to pacify her husband and in-laws and went to join with them, and there was mediation convened by the elders and after failure of the https://hcservices.ecourts.gov.in/hcservices/ medication, she preferred the complaint. That factum has not been considered by the trial Court. The trial Court has also not considered Ex.P-2 e-mail addressed by A.1. Learned Senior Counsel further submitted that the evidence of P.Ws.1 and 2 clearly proved the demand of dowry and the same has not been considered by the trial Court. The evidence of P.Ws.1 to 5 proved that the respondents 1 to 3/accused are guilty of the offence under Sections 498-A and 406 IPC. Learned Senior Counsel appearing for the revision petitioner/P.W.1/complainant relied upon the decision of the Apex Court reported in 2009 (14) SCC 569 (K.Ramachandran Vs. V.N.Rajan) and submitted that if the trial Court ignored any important piece of evidence or it has chosen not to appreciate the same, or had illegally permitted any evidence to come on record, or there was some serious defects in the trial affecting the merits of the case, then the Revisional Court can interfere with the order of acquittal. He further submitted that the trial Court in paragraph 12 of the impugned order, has come to the conclusion that the ingredients of Section 498-A IPC, are only cruelty against the body of a person and not mental cruelty and prayed for setting aside the impugned order of acquittal and allow the Crl.R.C. 5. Learned counsel appearing for the respondents 1 to 3/accused submitted that there is no illegality or irregularity or perversity in the impugned order of acquittal and as per the dictum of the Apex Court reported in 1997 (6) SCC 185 (Kaptan Singh Vs. State of M.P), the High Court should not interfere with the order of acquittal unless there is a manifest illegality or grave miscarriage of justice and therefore, there is no reason for interfering with the findings of the trial Court, acquitting the respondents 1 to 3/accused. He further submitted that the evidence of P.Ws.1 to 4 who are all relatives, i.e. P.W.2 is the father of P.W.1 and P.W.3 is the brother of P.W.1 and P.W.4 is the maternal uncle of P.W.1 and so, the evidence of P.Ws.1 to 4 has been properly considered by the trial Court and he prayed for dismissal of Crl.R.C. 6. Heard the learned Government Advocate (Crl. Side) appearing for the fourth respondent-Police on the above aspects. 7. Considering the rival submissions made by learned counsel on either side and the materials available on record, it is seen that P.W.1 got married to the second respondent/A1 on 23.5.2002 and it is the case of the prosecution through P.W.1 that the properties have been given to her during marriage. To substantiate the same, the revision petitioner/complainant/P.W.1 filed Ex.P-3 shows that the house properties stand in the name of P.W.1 and her sister and as per Ex.P-4, shares were sold to P.W.1, and the shares stood in the name of P.W.1 as per Ex.P-7, Fixed Deposit receipt for Rs.5 lakhs, is marked as Ex.P-8 and the Fixed Deposit receipt issued by Ennor Muds and Chemicals is marked as Ex.P-9. Admittedly, no document https://hcservices.ecourts.gov.in/hcservices/ has been filed for issuance of gold jewels, diamond jewels and silver articles. 8. The trial Court acquitted the accused only on the ground of delay in preferring the private complaint. Admittedly, the marriage was performed on 23.5.2002 and P.W.1/complainant was in Chennai from 9.2.2003, but the private complaint was given only in 2004. To prove the Panchayat, P.W.5 has been examined, but there is no independent witness examined. P.W.2 is the father of P.W.1, P.W.3 is her brother and P.W.4 is her maternal uncle. P.W.4 stated that he received information from P.W.1 and his family and therefore, his evidence is hearsay. In such circumstances, the delay has not been properly explained. That factum has been considered by the trial Court. 9. Learned Senior Counsel appearing for the revision petitioner/P.W.1/complainant submitted that Ex.P-2 e-mail has not been considered by the trial Court. It is true that e-mail has not been proved in accordance with law by producing any certificate to show that the same was sent by A.1. In such circumstances, the trial Court has considered this aspect in proper perspective and hence, I am of the view that the findings of the trial Court in respect of Ex.P-2 e-mail, do not warrant any interference. 10. Before going into the merits of the Crl.R.C., it has to be noted that the powers of the Revisional Court is limited. As per the decision reported in 1997 (6) SCC 185 (Kaptan Singh Vs. State of M.P.) (cited supra), relied on by learned Senior Counsel appearing for the revision petitioner/P.W.1/complainant, the High Court should not interfere with the order of acquittal unless there is manifest illegality or grave miscarriage of justice. In the said decision, it was observed by the Apex Court as follows: "5. From a conspectus of the above decisions, it follows that the revisional power of the High Court while sitting in judgment over an order of acquittal should not be exercised unless there exists a manifest illegality in the judgment or order of acquittal or there is grave miscarriage of justice. Read in the context of the above principle of law we have no hesitation in concluding that the judgment of the trial Court in the instant case is patently wrong and it has caused miscarriage of justice. The High Court was therefore fully justified in setting aside the order of acquittal. ...." 11. So, it is the duty of the Court to peruse the impugned order and decide as to whether there is any miscarriage of justice or is there any irregularity or illegality or perversity in the same. https://hcservices.ecourts.gov.in/hcservices/ 12. Learned counsel appearing for the respondents 1 to 3/accused, relied on the judgment of the Apex Court reported in 2009 (14) SCC 569 (K.Ramachandran Vs. V.N.Rajan) (cited supra), wherein, it was held by the Supreme Court that if the trial Court ignored any important piece of evidence or it has chosen not to appreciate the same, or had illegally permitted any evidence to come on record, or there was some serious defects in the trial affecting the merits of the case, then the Revisional Court can interfere with the order of acquittal. 13. The revisional power has to be exercised by the High Court only in very exceptional cases where the High Court finds defect in the procedures or mainfest error of law resulting in flagrant miscarriage of justice. At this juncture, it is appropriate to refer the decision of the Supreme Court, reported in 2008 Cri.L.J. 1627 (Johar Vs. Mangal Prasad) which would show that the power of the revisional Court is very limited. In the said decision, the Supreme Court observed as follows: "9. Revisional jurisdiction of the High Court in terms of Section 397 read with Section 401 of the Code of Criminal Procedure is limited. The High Court did not point out any error of law on the part of the learned Trial Judge. It was not opined that any relevant evidence has been left out of its consideration by the Court below or irrelevant material has been taken into consideration. The High Court entered into the merit of the matter. It commented upon the credentiality of the Autopsy Surgeon. It sought to re-appreciate the whole evidence. One possible view was sought to be substituted by another possible view." 14. The revisional Court's power is very limited and when once the finding is perverse or there is illegality or irregularity in the view, then only the revisional Court shall appreciate the evidence and set aside the findings of the trial Court and remit the case for re-trial. 15. Revisional powers can be exercised only to see that Justice is done in accordance with recognized rules of Criminal Jurisprudence. The Powers under Section 401 Cr.P.C. can be exercised where interests of Public Justice, require interference for the correction of a manifest illegality of the prevention of a gross miscarriage of justice, notwithstanding the bar of executions contained in Section 401 Cr.P.C., the High Court has Jurisdiction suo motu to set aside an illegal order of acquittal in exercise of the revisional powers. 16. The revisional Court does not interfere with the findings of fact arrived at by the Court below, unless the Courts below had https://hcservices.ecourts.gov.in/hcservices/ overlooked essential parts of evidence and/or acted upon inadmissible and extraneous matters. The revisional Court ought not to interfere merely because the lower Court has taken a particular view of the evidence and that view does not comment itself to the revisional Court. High Court can interfere only when there is a glaring mistake in the order of acquittal causing failure of justice. Interference with the order of the trial Court is not permissible, unless the order of the trial Court is unreasonable or perverse. It cannot be gainsaid that a Court cannot act on presumptions to either convict or acquit an accused, and Court has a duty to assess evidence led and to come to definite conclusions in this regard, where a Court proceeds on hypothesis and arrives at hypothetical conclusions having no nexus with evidence, then a valuable right accrues in favour of the affected party. 17. The revisional Court cannot refuse to go into facts where it appears to it that there has been in the Case, a gross failure of Justice, if the findings touch any Jurisdictional requirement or takes into consideration the irrelevant facts, such a finding is not binding so as to deprive it of the power to correct the jurisdictional failure. 18. The High Court cannot enter into minute details of evidence recorded by the Magistrate. The verdict on appreciation of evidence by a Magistrate cannot be set aside on the ground of his failure to sift the evidence by separating the grain from the chaff. 19. Improper appreciation of evidence or record cannot be a ground for interference by the High court with the order of the trial Court. No perversity or non-application of mind to any material aspect can be attracted to the assessment and valuation of evidence made by the Courts below. Even though a different view is available to be drawn from the materials on record, that shall not be a ground for interference while exercising revisional jurisdiction. 20. Therefore, if the findings of the trial Court are perverse, and if there is non-appreciation of the evidence or findings, which are illegal or irregular, then only the Revisional Court has power to set aside the impugned order of acquittal and remand the case back to the trial Court for re-trial. 21. In the present case, there is no perversity or illegality or irregularity in the impugned order of acquittal. Before the trial Court, the revision petitioner/P.W.1/complainant has not filed any scrap of paper to show that when she was in States, as well as in Chennai, before issuance of summons in the divorce petition, she has sent a communication to her father that she was subjected to ill- treatment either mentally or physically. Admittedly, only after https://hcservices.ecourts.gov.in/hcservices/ receipt of the summons in the divorce petition, she has preferred the complaint. Furthermore, the evidence of P.Ws.1 to 4 was properly appreciated by the trial Court, and then only, the trial Court acquitted the accused. In such circumstances, I am of the view that the trial Court has considered this aspect and the findings of the trial Court are not perverse and there is no irregularity or infirmity or illegality in the impugned order of acquittal passed by the trial Court. The findings of the trial Court are cogent and convincing and hence, the same does not warrant any interference by this Court. The Crl.R.C. deserves to be dismissed. 22. For the foregoing reasons, the Crl.R.C. is dismissed, confirming the impugned order of acquittal passed by the trial Court. The Miscellaneous Petition is closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar cs To 1. The Chief Metropolitan Magistrate, Chennai-8. 2. Inspector of Police, W8 All Women Police Station, Sembium Circle, Kilpauk, Chennai-600 010. (Crime No.14 of 2004) 3. The Public Prosecutor, High Court, Madras. 4. The Record Keeper, Criminal Section, High Court, Madras. +1cc to Mr.K.Sukumaran, Advocate Sr 28146 SAI(CO) km/29.4. Crl.R.C.No.1472 of 2007 https://hcservices.ecourts.gov.in/hcservices/