IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:28.07.2009 CORAM: THE HONOURABLE MR.JUSTICE G.RAJASURIA Crl.R.C.No.1061 of 2006 and M.P.No.1 of 2006 Kannagi ... Petitioner/III Party vs. 1. State, rep. By the Sub Inspector of Police, All Women Police Station, Arani, Tiruvannamalai District. ... Respondent/Complainant 2. Asokan 3. Navaneetham 4. Gokulavani 5. Balamurugan 6. Balaraman ... Respondents/Accused 1 to 4 & 6 Prayer: Petition filed under Section 397 and 401 of Cr.P.C. against the judgment dated 7.3.2006, made in Crl.A.No.21 of 2005 on the file of the learned District & Sessions Judge, Thiruvannamalai against the order of conviction dated 18.04.2005 in C.C.No.44 of 2002 passed by the Judicial Magistrate, Arani. For Petitioner : Mr.V.Subramaniyan for M/s Mc Gan Law Firm For R1 : Mr.R.Muniyapparaj,G.A.(crl.side) For R2 to R6 : Mr.V.Karthik for M/s T.S.Gopalan & Co. ----- O R D E R Animadverting upon the order dated 7.3.2006 passed by the learned District & Sessions Judge, Thiruvannamalai in Crl.A.No.21 of 2005 reversing the order of conviction dated 18.04.2005 in C.C.No.44 of 2002 passed by the Judicial Magistrate, Arani, this criminal revision is focussed. 2. A summation and summarisation of the relevant facts which are absolutely necessary and germane for the disposal of this revision petition would run thus: (a) The police laid the police report in terms of Section 173 https://hcservices.ecourts.gov.in/hcservices/ Cr.P.C. as against the accused persons, namely, (1) Asokan, (2) Navaneedham, (3) Kokilavani, (4) Balamurugan, (5) Nandhakumar and (6) Balaraman for the offences under Sections 323, 498(A) IPC and Section 4 of Dowry Prohibition Act r/w Sec.34 IPC. (b) Inasmuch as the accused pleaded not guilty, the trial was conducted and during trial, on the prosecution side, P.Ws.1 to 20 were examined and Exs.P1 to P9 were marked. No oral or documentary evidence was adduced on the side of the accused. (c) Ultimately, the trial Court acquitted A5, and convicted A1 to A4 and A6 and sentenced them to undergo the following punishment: ---------------------------------------------------------------- Case No. Accused Offence Punishment imposed ---------------------------------------------------------------- C.C. A1 to u/s 4 of DP Two years R.I., fine amount No.44/02 A4 and Act. of Rs.5,000/- by each of the A6 accused, in default, to undergo two months simple imprisonment. U/s 498(A) Three years R.I., fine amount of Rs.5,000/- by each of the accused, in default, to undergo three months S.I. (Sentence to run concurrently) ------------------------------------------------------------ 3. Being aggrieved by and dissatisfied with the judgment of the lower Court, A1 to A4 and A6 filed appeal. The appellate Judge acquitted all the appellants. 4. Animadverting upon such acquittal by the appellate Court, this revision is focussed on various grounds at the instance of the de facto complainant, the warp and woof of them would run thus: The appellate Court was not justified in setting aside the order of conviction recorded by the learned Magistrate and in acquitting the accused. The learned Sessions Judge was wrong in his conclusion that since respondents 2 to 6 were acquitted under Section 323 IPC by the trial Court, the appellants should have been acquitted of the offences under Section 498-A and Section 4 of Dowry Prohibition Act. The appellate Court ignored the evidence relating to dowry demand made by the appellants before the appellate Court. The appellate Court is prejudiced for the reason that it remarked that the police are in the habit of registering false FIR as though the accused are demanding twenty sovereigns of jewels and one Hero Honda vehicle. The appreciation of evidence by the first appellate Court relating to Ex.P5 is also untenable. Section 8A of Dowry Protection Act, 1961 was not properly taken into account by the appellate Court. The first appellate Court failed to take into consideration the complaint given by the petitioner at the hospital and which was forwarded to the police for registering the FIR on 26.08.2001. Even though the appellate Court arrived at the conclusion that A1 was not amenable to https://hcservices.ecourts.gov.in/hcservices/ live with the petitioner, nonetheless, the trial Court disbelieved the dowry harassment as imputed against him . Accordingly, she prayed for setting aside the order of the first appellate Court and for restoring the judgment of the Magistrate. 5. Heard Mr.V.Subramaniyam, learned counsel appearing for the revision petitioner, Mr.R.Muniyapparaj, learned Government Advocate (crl.side) for R1 and Mr.V.Karthik for respondents 2 to 6. 6. The learned counsel for the revision petitioner by way of reiterating the grounds of revision would develop his argument to the effect that the first appellate Court was not justified in acquitting the appellants/accused on flimsy grounds and that too after giving the finding that A1 actually harassed and tortured the de facto complainant. 7. Whereas the learned counsel for the accused would advance and set forth his argument to the effect that the powers of the revisional Court is restricted and that too in the case of revision as against the order of acquittal. In support of his contention, he would cite the following decisions of the Hon'ble Apex Court. Hence it is just and necessary to refer to those decisions: (I) AIR 1962 SC 1788 [K.Chinnaswamy Reddy v. State of Andhra Pradesh], an excerpt from it would run thus: 7. It is true that it is open to a High Court in revision to set aside an order of acquittal even at the instance of private parties, though the State may not have thought fit to appeal; but this jurisdiction should in our opinion be exercised by the High Court only in exceptional cases, when there is some glaring defect in the procedure or there is a manifest error on a point of law and consequently there has been a flagrant miscarriage of justice. Sub-section (4) of Section 439 forbids a High Court from converting a finding of acquittal into one of conviction and that makes it 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 retrial, when it cannot itself directly convert a finding of acquittal into a finding of conviction. This places limitations on the power of the High Court to set aside a finding of acquittal in revision and it is only in exceptional cases that this power should be exercised. It is not possible to lay down the criteria for determining such exceptional cases which would cover all contingencies. We may however indicate some cases of this kind, which would in our opinion justify the High Court in interfering with a finding of acquittal in revision. These cases may be: where the trial court has no jurisdiction to try the case but has still acquitted the accused, or where the trial court has wrongly shut out evidence which the prosecution wished to produce, or where the appeal court has wrongly held evidence which was admitted by the trial https://hcservices.ecourts.gov.in/hcservices/ court to be inadmissible, or where material evidence has been overlooked either by the trial court or by the appeal court, or where the acquittal is based on a compounding of the offence, which is invalid under the law. These and other cases of similar nature can properly be held to be cases of exceptional nature, where the High Court can justifiably interfere with an order of acquittal; and in such a case it is obvious that it cannot be said that the High Court was doing indirectly what it could not do directly in view of the provisions of Section 439(4). We have therefore to see whether the order of the High Court setting aside the order of acquittal in this case can be upheld on these principles. (II) AIR 1968 SC 707 [Mahendra Pratap Singh vs. Sarju Singh and another], an excerpt from it would run thus: 7. In revision, the learned Judge in the High Court went into the evidence very minutely. He questioned every single finding of the learned Sessions Judge and gave his own interpretation of the evidence and the inferences to be drawn from it. He discounted the theory that the weapon of attack was a revolver and suggested that it might have been a shot gun or country made pistol which the villagers in the position of Kuldip and Sarju could not distinguish from a revolver. He then took up each single circumstance on which the learned Sessions Judge had found some doubt and interpreting the evidence de novo held, contrary to the opinion of the Sessions Judge that they were acceptable. All the time he appeared to give the benefit of the doubt to the prosecution. The only error of law which the learned Judge found in the Sessions Judge’s judgment was a remark by the Sessions Judge that the defence witnesses who were examined by the police before they were brought as defence witnesses ought to have been cross examined with reference to their previous statements recorded by the police, which obviously is against the provisions of the Code. Except for this error, no defect of procedure or of law was discovered by the learned Judge of the High Court in his appraisal of the judgment of the Sessions Judge. As stated already by us, he seems to have gone into the matter as if an appeal against acquittal was before him making no distinction between the appellate and the revisional powers exercisable by the High Court in matters of acquittal except to the extent that instead of convicting the appellant he only ordered his retrial. In our opinion the learned Judge was clearly in error in proceeding as he did in a revision filed by a private party against the acquittal reached in the Court of Session. 8. The practice on the subject has been stated by this Court on more than one occasion. In D. Stephens v. Nosibolla only two grounds are mentioned by this Court as entitling the High Court to set aside an acquittal in a https://hcservices.ecourts.gov.in/hcservices/ revision and to order a retrial. They are that there must exist a manifest illegality in the judgment of the Court of Session ordering the acquittal or there must be a gross miscarriage of justice. In explaining these two propositions, this Court further states that the High Court is not entitled to interfere even if a wrong view of law is taken by the Court of Session or if even there is misapprehensions of evidence. Again, in Logendranath Jha v. Shri Polailal Biswas, this Court points out that the High Court is entitled in revision to set aside an acquittal if there is an error on a point of law or no appraisal of the evidence at all. This Court observes that it is not sufficient to say that the judgment under revision is “perverse” or “lacking in true correct perspective”. It is pointed out further that by ordering a retrial, the dice is loaded against the accused, because however much the High Court may caution the Subordinate Court, it is always difficult to reweigh the evidence ignoring the opinion of the High Court. Again in K. Chinnaswamy Reddy v. State of Andhra Pradesh, it is pointed out that an interference in revision with an order of acquittal can only take place if there is a glaring defect of procedure such as that the court had no jurisdiction to try the case or the court had shut out some material evidence which was admissible or attempted to take into account evidence which was not admissible or had overlooked some evidence. Although the list given by this Court is not exhaustive of all the circumstances in which the High Court may interfere with an acquittal in revision it is obvious that the defect in the judgment under revision must be analogous to those actually indicated by this Court. As stated, not one of these points which have been laid down by this Court was covered in the present case. In fact on reading the judgment of the High Court it is apparent to us that the learned Judge has reweighed the evidence from his own point of view and reached inferences contrary to those of the Sessions Judge on almost every point. This we do not conceive to be his duty in dealing in revision with an acquittal when Government has not chosen to file an appeal against it. In other words, the learned Judge in the High Court has not attended to the rules laid down by this Court and has acted in breach of them. (III) 1973 SCC (cri) 903 [Akalu Ahir and others v. Ramdeo Ram], an excerpt from it would run thus: This Court then proceeded to observe that the High Court is certainly entitled in revision to set aside the order of acquittal even at the instance of private parties, though the State may not have thought fit to appeal, but it was emphasised that this jurisdiction should be exercised only in exceptional cases when “there is some glaring defect in the procedure or there is a manifest error on a point of law and consequently there has been a flagrant https://hcservices.ecourts.gov.in/hcservices/ miscarriage of justice”. In face of prohibition in Section 439(4) CrPC for the High Court to convert a finding of acquittal into one of’ conviction, it makes 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 re-trial. No doubt, in the opinion of this Court, as criteria for determining such exceptional cases which would cover all contingencies for attracting the High Court’s power of ordering re-trial can be laid down. 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. In Mahendra Pratap Singh (supra), the position was again reviewed and the rule laid down in the three earlier cases reaffirmed. In that case the reading of the judgment of the High Court made it plain that it had re- weighed the evidence from its own point of view and reached inferences contrary to those of the Sessions Judge on almost every point. This Court pointed out that it was not the duty of the High Court to do so while dealing with an acquittal of revision, when the Government had not chosen to file an appeal against it. “In other words” said this Court, “the learned Judge in the High Court has not attended to the rules laid down by this Court and has acted in breach of them”. (IV) 1975 SCC (cri) 543 [Pakalapati Narayana Gajapathi Raju and others v. Bonapalli Peda Appadu and another], an excerpt from it would run thus: "3. It is clear from these decisions that the revisional jurisdiction cannot be invoked merely https://hcservices.ecourts.gov.in/hcservices/ because the lower court has not appreciated the evidence properly. The High Court has in its judgment referred to the decisions of this Court but in applying those decisions it has transgressed the limits of its revisional powers." (V) AIR 1997 SC 2485 [Kaptan Singh and others v. State of M.P. and another], an excerpt from it would run thus: "5. ......The trial Court is then required to base its conclusion solely on the evidence adduced during the trial; and it cannot rely on the investigation or the result thereof, since this is an elementary principle of criminal law, we need not dilate on this point any further." Placing reliance on those decisions, the learned counsel for the accused would submit that virtually as against the judgment of acquittal, the Court should be reluctant to interfere unless there is perversity in applying the law and rendering the judgment of acquittal; simply because there is wrong appreciation of evidence or even wrong understanding of the law, it would not enure to the benefit of the de facto complainant to file a revision so as to get such order of acquittal set aside. 8. At this juncture, my mind is redolent and reminiscent of the following decisions of the Hon'ble Apex Court: (i) 2002(6) SCC 650- Bindeshwari Prasad Singh alias B.P.Singh and Others vs. State of Bihar (now Jharkhand) and another; an excerpt from it would run thus: "13. The instant case is not one where any such illegality was committed by the trial court. In the absence of any legal infirmity either in the procedure or in the conduct of the trial, there was no justification for the High Court to interfere in exercise of its revisional jurisdiction. It has repeatedly been held that the High Court should not reappreciate the evidence to reach a finding different from the trial court. In the absence of manifest illegality resulting in grave miscarriage of justice, exercise of revisional jurisdiction in such cases is not warranted. 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 https://hcservices.ecourts.gov.in/hcservices/ 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. (ii) 2005 Supreme Court Cases (cri) 276 – Sathyajit Banerjee and Others vs. State of W.B.and others, an excerpt from it would run thus: "22. The cases cited by the learned counsel show the settled legal position that the revisional jurisdiction, at the instance of the complainant, has to be exercised by the High Court only in very exceptional cases where the High Court finds defect of procedure or manifest error of law resulting in flagrant miscarriage of justice." A bare perusal of the said precedents would demonstrate and display that the revisional court is not expected to interfere with the findings given by both the courts below and if there is any perversity or non-application of law on the part of both the courts below, the question of revisional court interfering with the findings would arise. 9. As such, a cumulative reading of all the decisions cited supra would undoubtedly and unambiguously highlight and spotlight the fact that the acquittal of the accused by the lower Court is in reinforcement of the innocence of the accused and in such a case, the revisional Court should be reluctant to interfere with such finding. Absolutely there is no quarrel over such a proposition. At this juncture it is just and necessary to see whether the order of acquittal by the first appellate Court warrants interference or not. 10. The following excerpts from the judgment of the first appellate Court are extracted hereunder for ready reference: (1) ////// g";rhaj;jpy; jdJ tpUg;gg;go fy;ahzk; bra;Jf;bfhs;stpy;iy vd;W Kjy; vjpuhsp brhd;dhh;/ m/rh/1 cld; thH KoahJ vd;W Kjy; vjpuhsp brhd;dhh;/ g";rhaj;jpy; Kjy; vjpuhsp vd; tpUg;ggo vdf;F jpUkzk; bra;J itf;ftpy;iy vd;Wk;. mth; mg;ght[ld; rz;il nghl;Lf;bfhz;lhh;@ vd;W Twpa[s;shh;/ ,e;j rhl;rpfspd; rhl;rpa';fis ghh;f;Fk; nghJ Kjy; vjpuhspf;F mtUila tpUg;gg;go mtUila je;ij 6Mk; vjpuhsp jpUkzk; bra;J itf;ftpy;iy vd;gJk;. Kjy; vjpuhspf;F m/rh/1I mtuJ tpUg;gj;jpw;F khwhf jpUkzk; bra;J itf;fg;gl;Ls;sJ vd;gJk;. mjd; fhuzkhfj;jhd; Kjy; vjpuhsp m/rh/1 cld; ,ize;J thHtpy;iy vd;W bjs;sj; bjspthfpwJ/ /////// (2) /////// nkw;brhd;d rhl;rpfspd; rhl;rpa';fspy; g";rhaj;jpy; m/rh/1I jdJ tpUg;gj;jpw;F khwhf 6tJ vjpuhsp jdf;F jpUkzk; bra;J https://hcservices.ecourts.gov.in/hcservices/ itj;jjhf vjpuhsp jdJ je;ijia jpl;oapUg;gija[k; ghh;f;Fk;nghJ Kjy; vjpuhspf;F m/rh/1I jpUkzk; bra;J itf;Fk;nghJ mtuJ tpUg;gj;jpw;F khwh jpUkzk; bra;J itj;Js;sdh; vd;gJk;. Kjy; vjpuhspapd; jpUkzj;jpw;F vjpuhf m/rh/1I jpUkzk; bra;J itj;jjhy; m/rh/1d; kPJ mtUf;F btWg;g[ Vw;gl;Ls;sJ vd;gJk;. mjdhy; mth; m/rh/1 cld; nrh;e;J thH mth; xj;JiHf;ftpy;iy vd;gJk; g[ydhfpwJ/ //////// (3) ///////// mLj;jjhf m/rh/1I Kjy; vjpuhspapd; tpUg;gj;jpw;F khwhf mtUf;F jpUkzk; bra;J itf;fg;gl;Ls;sJ/ ,e;j ,uz;L Tw;Wf;fSk; muRj;jug;g[r; rhl;rpfspd; rhl;rpa';fspypUe;Jk;. Mtz';fspypUe;Jk; bjs;sj; bjspthfpwJ/ ,jid ghh;f;Fk;nghJ. jdf;F gpof;fhj m/rh/1I jdf;F jpUkzk; bra;J itj;J tpl;lhhfs; vd;W btWg;ig fhl;Lk; tifapy; jhd; m/rh/1 cld; Kjy; vjpuhsp mof;fo rz;il bra;J te;Js;shh; vd;gJ muRj;jug;g[ rhl;rpfspd; rhl;rpa';fs; kw;Wk; Mtz';fpspypUe;J bjhpa tUfpwJ/ /////// (4) //////// nkYk; m/rh/4. mtuJ rhl;rpaj;jpy;. mtUf;F m/rh/1 vGJk; fojj;jpy; m/rh/1I jpUkzk; bra;jjpypUe;J jhpj;jpuk; gpoj;Jtpl;ljhft[k;. ntW xU bgz;iz jpUkzk; bra;ag;nghtjhft[k;. m/rh/1d; fzth; mog;gjhft[k;. bts;isg;ngg;ghpy; ifbaGj;J th';fpajhft[k; Fwpg;gpl;oUg;ggjhf TwpapUg;gij ghh;f;Fk;nghJ. Kjy; vjpuhsp. mtUf;F tpUg;ggl;l xU bgz;iz jpUkzk; bra;tjw;fhfj;jhd; bts;is ngg;ghpy; ifbaGj;J nghl;Lf;bfhLf;Fk;go Jd;g[Wj;jpajhf bjhpa tUfpwnjad;wp ////@ Those excerpts would display and evince that the first appellate Court while exonerating the accused relating to the imputation and allegation of dowry harassment, gave a categorical finding that A1, the husband of the de facto complainant harassed the latter on general grounds. However, after giving such a finding, he simply acquitted the accused. No doubt, the learned counsel for the accused invited the attention of this Court to various portions of the judgment of the first appellate Court and highlighted that the first appellate Court without mincing words gave a finding that P.W.1 was a witness who indulged in embellishment from stage to stage and as such, her evidence was not worthy of credence; there is also a categorical finding by the appellate Court that the very allegation of dowry harassment as against A1 and others had no legs to stand; in such a case, simply because the learned appellate Judge remarked here and there while writing the judgment that A1 might have harassed the complainant for some other reason, so to say, because he did not like her even at the time of marriage, it should not be taken note of by this revisional Court and on that ground only the judgment of the appellate Court need not be set aside and the matter remitted back to the first appellate Court or to the trial Court. 11. It is also the contention of the learned counsel for the https://hcservices.ecourts.gov.in/hcservices/ accused that the trial Court had not given infact any finding based on general cruelty de hors dowry harassment. Once the appellate Court held that there was no dowry harassment and consequently no cruelty, then there ends the matter, as the first appellate Court's finding was reversed by the appellate Court and nothing more remains; had the trial Court atleast gave a finding that de hors dowry harassment, there was generally harassment, then there would be some scope for interference, but in this case, the trial Court itself never gave any finding that apart from dowry harassment, there was also generally harassment attracting Section 498(A) of IPC. 12. I would like to point out that the appellate Court is the last Court of facts. The trial Court, after considering the evidence at length, generally found that the accused committed the offence attracting Section 498(A) IPC. However, it is the first appellate Court which concentrated only on dowry harassment, so to say, the ingredients as found exemplified under sub clause (b) of the explanation appended to Section 498(A) IPC and held that there was no dowry harassment and consequently, no offence under Section 498(A) IPC made out. There is sub clause (a) under the explanation appended to Section 498(A) IPC, which contemplates general harassment de hors dowry harassment. As has been already highlighted supra, in