Meenu Rani v. State of Punjab and Ors

JAGMOHAN BANSAL, J. (ORAL) CRM-24895 of 2017 Theoapplicantoisoseekingocondonationoofodelayoofo29odays inofilingotheoappeal.o In o view o of o averments o made o in o the o application o and argumentsoadvancedobyocounseloforotheoapplicant,otheoapplicationois allowedoandodelayoofo29odaysoinofilingotheoappealoisocondoned. CRM-A-1744-MA of 2017 (O&M)

¶1The appellant, through the instant appeal, is seeking setting aside of judgment dated 11.04.2017 whereby Additional Sessions Judge, Sangrur has accepted appeal of the respondent. CRM-A-1744-MA of 2017 (O&M) -2-

¶2The brief facts arising from the record are that appellant moved an application to Senior Superintendent of Police, Sangrur alleging that she was married to Gurpreet Singh on 27.06.2010. Her parents gave sufficient dowry at the time of marriage. It was second marriage of Gurpreet Singh. His first wife had passed away and he has two children from the earlier wedlock. She before marriage disclosed to Gurpreet Singh that she is unable to give birth to a child. Gurpreet Singh on 5.10.2010, under the influence of intoxicant, made intercourse with her to the extent that it resulted into bleeding. She became unconscious and was admitted in hospital where she was operated. Her husband was demanding Innova car. On 5.12.2010, she alongwith her uncle went to her matrimonial home but they did not allow her to enter and turned her out of the house. The police conducted investigation and found that it is not a case of demand of dowry whereas it is a case of dispute between the parties on account of medical condition of the wife. The police after completing investigation filed challan alleging commission of offence by respondent punishable under Section 498-A IPC. The trial court framed charges. The prosecution led its evidences. After considering arguments of both sides, the trial court held the respondent guilty of offence punishable under Section 498-A IPC and accordingly awarded sentence of one year.

¶3The respondent herein preferred an appeal before Sessions Court which came up for consideration before learned Additional Sessions Judge who vide impugned order dated 11.04.2017 allowed appeal of the respondent herein. The appellant is assailing CRM-A-1744-MA of 2017 (O&M) -3-judgment passed by Appellate Court.

¶4Learned counsel for the appellant inter alia contends that respondent was duly informed about medical condition of the appellant. The respondent was already having two children, thus, there was no need of child. The respondent knowing medical condition of the appellant opted for intercourse with her which resulted into bleeding. The judgment of conviction passed by trial court was well reasoned and speaking still Appellate Court set aside the same.

¶5I have heard learned counsel for the appellant and scrutinized the record. The present appeal is devoid of merit.

¶6The relevant extracts of findings recorded by the Appellate Court read as:- "16. The perusal of the testimony of Inspector Parsin Kaur, examined as PW-4 reveals that she has admitted that the allegations of demand of dowry were raised by the complainant M, but the same were not found correct. The material dispute between them was a medical issue. The police did not find the appellant guilty of the misappropriation of dowry articles or demand of dowry. This fact is also supported by the enquiry report Ex. PW-4/A. Thus, it is clear that the complainant had filed the complaint before the police on false allegations against the appellant-accused. It has come in the evidence that the appellant was already married and was having two sons from the marriage. His first wife ha died. As per the CRM-A-1744-MA of 2017 (O&M) -4-claim of the claimant, she has disclosed of the defect in her vaginal canal. She has even deposed that she is not ready for her medical examination. Ex. PW-4/A is the report dated 25.12.2010, which reveals that the only dispute between the parties was that the complainant M was found to be not a complete woman. The prosecution has laid emphasis on the fact that the doctor had declared him a woman. But, there has not been any evidence that she has disclosed any fact qua her physical problem to the appellant-accused.

¶17The careful scrutiny of evidence on record reveals that there has been conduct of concealment of material fact of her physical problem from her husband, the appellant-accused. She has admitted the contents of prescription slip dated 19.08.2010 Ex. R-1 in the case of domestic violence, wherein it is mentioned that there is no uterus, only small depth of vagina. The appellant-accused had produced the record of treatment exhibited in the evidence of Dr. Renu Singla in case under Section 12 of Hindu Marriage Act filed in the Court of learned Additional District Judge, Sangrur, which reveals that the complainant and her family members did not disclose the physical problem of complainant to the appellant-accused.

¶18The very basis of the matrimony is to permit the enjoyment of physical pleasure with the marital CRM-A-1744-MA of 2017 (O&M) -5-partner and the concealment of the material facts as has been done by the complainant herself in this case amounts to cruelty to the appellant-accused and not to the complainant. The prosecution had laid empahasis that there were allegations from the appellant-accused that the wife is not fit for conjugal pleasure, but it does not amount to cruelty especially when the medical report brought on record, does not strictly supports the case of the prosecution and rather raises the point of favour in favour of appellant-accused. 19, 20 and 21 XXXXX

¶22It is an admitted case of the complainant that she had married with the appellant-accused on 27.06.2010 and was kept in a nice manner for three months. Before the marriage, she has disclosed to the appellant-accused that the depth of vagina is only three inch and she can not give birth to the child. But, she can give some enjoyment of matrimonial life. In such circumstances, committing of cruelty during sexual pleasure with her, on

5.10.2010, under intoxicated condition is not believable. It is admitted that the physical union was made by the appellant-accused in the early morning and as such, this Court is of the opinion that while appreciating the evidence, the Court must arrive at a appropriate conclusion to find that the allegations, if accepted, disclose the commission of offence or not. In the present oCRM-A-1744-MAoofo2017o(O&M)oooooooooooooooooooooooooooooooooooo-6-case,otheoevidenceoisowhollyoinsufficientotooproveothe chargeoofotheooffenceounderoSectiono498-AoofoIPC."

¶7Hon'bleoSupremeoCourtoinoaocatenaoofojudgmentsowhile dealingowithoscopeoandopowersoofotheoappellateocourtoinodealingowith anoappealoagainstoanoorderoofoacquittalohasoelucidated:o

(i) o An o appellate o court o has o full o power o to o review, reappreciateoandoreconsiderotheoevidenceouponowhichothe orderoofoacquittaloisofounded.o

(ii)oTheoCodeoofoCriminaloProcedure,o1973oputsono limitation,orestrictionooroconditionoonoexerciseoofosuch poweroandoanoappellateocourtoonotheoevidenceobeforeoit mayoreachoitsoownoconclusion,obothoonoquestionsoofofact andoofolaw.o

(iii) o Various o expressions, o such o as, o 'substantial o and compellingoreasons',o'goodoandosufficientogrounds',o'very strongocircumstances',o'distortedoconclusions',o'glaring mistakes', o etc. o are o not o intended o to o curtail o extensive powers o of o an o appellate o court o in o an o appeal o against acquittal.oSuchophraseologiesoareomoreoinotheonatureoof 'flourishesoofolanguage'otooemphasiseotheoreluctanceoofoan appellateocourtotoointerfereowithoacquittalothanotoocurtail theopoweroofotheocourtotooreviewotheoevidenceoandotoocome tooitsoownoconclusion.o

(iv)oAnoappellateocourt,ohowever,omustobearoinomind oCRM-A-1744-MAoofo2017o(O&M)oooooooooooooooooooooooooooooooooooo-7-thatoinocaseoofoac9uittal,othereoisodoubleopresumption inofavouroofotheoaccused.oFirstly,otheopresumptionoof innocenceoisoavailableotoohimounderotheofundamental principleoofocriminalojurisprudenceothatoeveryoperson shallobeopresumedotoobeoinnocentounlessoheoisoproved guiltyobyoaocompetentocourtoofolaw.oSecondly,othe accusedohavingosecuredohisoac9uittal,otheopresumption ofohisoinnocenceoisofurtheroreinforced,oreaffirmedoand strengthenedobyotheotrialocourt.o

(v)oIfotwooreasonableoconclusionsoareopossibleoonothe basisoofotheoevidenceoonorecord,otheoappellateocourtoshould notodisturbotheofindingoofoacquittalorecordedobyotheotrial court.

¶8AothreeojudgeobenchoofotheoApexoCourtoinoAshokoKumaroSingh ChandeloVsoStateoofoU.P.o2022oLiveoLawo(SC)o915o hasoadvertedowith questionoofojurisdictionoofoHighoCourtoinoappealsoagainstoacquittal.oTheoApex Courtohasoheld: I.oJurisdictionoofotheoHighoCourtoinoAppealsoAgainst Acquittals

73.oThisoisotheofirstopreliminaryosubmissionoandoitoisobased onoaoprincipleolaidodownobyothisoCourtothatoinoanoappeal againstoacquittal,otheocriminaloappellateocourtowillonot interfereowithotheoacquittalounlessothereoareosubstantialoand compellingoreasons.oTheocommonosubmissionoofoallothe counselsoappearingoforotheoAppellantsois,otherefore,othatothe HighoCourtowasonotojustifiedoinoreversingotheoorderoof oCRM-A-1744-MAoofo2017o(O&M)oooooooooooooooooooooooooooooooooooo-8-acquittal.

74.oTheopositionoofolawowithorespectotootheojurisdictionoofothe HighoCourtoinocasesoofoappealsoagainstoacquittalsoisowell established.oAfteroreviewingotheojudgmentsoonothisosubject, thisoCourtoclarifiedoinoChandrappaov.oStateoofoKarnataka

(2007)o4oSCCo415othat: "3.oVariousoexpressions,osuchoas,o"substantialoand compellingoreasons",o"goodoandosufficientogrounds", "very o strong o circumstances", o "distorted conclusions", o "glaring o mistakes", o etc. o are o not intendedotoocurtailoextensiveopowersoofoanoappellate court o in o an o appeal o against o acquittal. o Such phraseologiesoareomoreoinotheonatureoofo"flourishes ofolanguage"otooemphasiseotheoreluctanceoofoan appellateocourtotoointerfereowithoacquittalothanoto curtailotheopoweroofotheocourtotooreviewotheoevidence andotoocomeotooitsoownoconclusion."

¶75oItoisosufficientotoonoteotheoprincipleolaidodownoinothe ConstitutionoBenchoofothisoCourtoinoM.G.oAgarwalov.oStateoof Maharashtrao(1963)o2oSCRo405: "16.o…Butotheotrueolegalopositionoisothatohowever circumspectoandocautiousotheoapproachoofotheoHigh Court o may o be o in o dealing o with o appeals o against acquittals,oitoisoundoubtedlyoentitledotooreachoitsoown conclusions o upon o the o evidence o adduced o by o the prosecutionoinorespectoofotheoguiltooroinnocenceoofothe accused.oThisopositionohasobeenoclarifiedobyotheoPrivy Council o inoSheo o Swarupov.oKingEmperoroandoNur Mohammadoov.oEmperoro[AIRo1945oPCo151]o…

17.o…Similarly o inoAjmer o Singhov.oState o of Punjabo[(1952)o2oSCCo709o:o1953oSCRo418]oitowas observedothatotheointerferenceoofotheoHighoCourtoinoan oCRM-A-1744-MAoofo2017o(O&M)oooooooooooooooooooooooooooooooooooo-9-appealoagainstotheoorderoofoacquittalowouldobeojustified onlyoifothereoareo"veryosubstantialoandocompelling reasonsotoodooso".oInosomeootherodecisions,oitohasobeen statedothatoanoorderoofoacquittalocanobeoreversedoonly foro"goodoandosufficientlyocogentoreasons"oorofor "strongoreasons".oInoappreciatingotheoeffectoofothese observations, o it o must o be o remembered o that o these observationsowereonotointendedotoolayodownoaorigidoor inflexibleoruleowhichoshouldogovernotheodecisionoofothe HighoCourtoinoappealsoagainstoacquittals.oTheyowere notointended,oandoshouldonotobeoreadotoohaveointended toointroduceoanoadditionaloconditionoinoclauseo(a)oof Section o 423(1) o of o the o Code.oAll o that o the o said observationsoareointendedotooemphasiseoisothatothe approachoofotheoHighoCourtoinodealingowithoanoappeal againstoacquittalooughtotoobeocautiousobecauseoasoLord Russell o observed o in o the o case o ofoSheo o Swarup,othe presumptionoofoinnocenceoinofavouroofotheoaccusedo"is notocertainlyoweakenedobyotheofactothatoheohasobeen acquittedoatohisotrial".oTherefore,otheotestosuggestedoby theoexpressiono"substantialoandocompellingoreasons" shouldonotobeoconstruedoasoaoformulaowhichohasotoobe rigidlyoappliedoinoeveryocase.oThatoisotheoeffectoofothe recentodecisionsoofothisoCourt,oforoinstance,oinoSanwat Singhov.oState o of o Rajasthano[AIR o 1961 o SC o 715] andoHarbansoSinghov.oStateoofoPunjabo[AIRo1962oSC 439]oandoso,oitoisonotonecessaryothatobeforeoreversingoa judgmentoofoacquittal,otheoHighoCourtomustonecessarily characterise o the o findings o recorded o therein o as perverse…"

76.oFollowingotheoConstitutionoBench,othisoCourtoinoGhurey Lalov.oStateoofoUPo(2008)o10oSCCo450 ohasoformulatedothe followingoprinciples: oCRM-A-1744-MAoofo2017o(O&M)oooooooooooooooooooooooooooooooooooo-10- "69.oTheofollowingoprinciplesoemergeofromocases

1.oTheoAppellateoCourtomayoreviewotheoevidence inoappealsoagainstoacquittalounderosectionso378 ando386oofotheoCriminaloProcedureoCode,o1973. Itsopowerooforeviewingoevidenceoisowideoandothe appellate o court o can o reappreciate o the o entire evidenceoonorecord.o Itocan oreviewotheotrial court'soconclusionowithorespectotoobothofactsoand law.

¶2o The o accused o is o presumed o innocent o until proven o guilty. o The o accused o possessed o this presumptionowhenoheowasobeforeotheotrialocourt. The o trial o court's o acquittal o bolsters o the presumptionothatoheoisoinnocent.

3.oDueooroproperoweightoandoconsiderationomust beogivenotootheotrialocourt'sodecision.oThisois especiallyotrueowhenoaowitness'ocredibilityoisoat issue.oItoisonotoenoughoforotheoHighoCourtotootake aodifferentoviewoofotheoevidence.oThereomustoalso be o substantial o and o compelling o reasons o for holdingothatotheotrialocourtowasowrong.

70.oInolightoofotheoabove,otheoHighoCourtoand otheroappellateocourtsoshouldofollowotheowell-settled o principles o crystallized o by o number o of judgmentsoifoitoisogoingotoooverruleoorootherwise disturbotheotrialocourt'soacquittal:

1.oTheoappellateocourtomayoonlyooverruleoor otherwiseodisturbotheotrialocourt'soacquittaloifoit haso"veryosubstantialoandocompellingoreasons" forodoingoso. Aonumberoofoinstancesoariseoinowhichotheoappellate oCRM-A-1744-MAoofo2017o(O&M)oooooooooooooooooooooooooooooooooooo-11-courtowouldohaveo"veryosubstantialoandocompelling reasons"otoodiscardotheotrialocourt'sodecision.o"Very substantialoandocompellingoreasons"oexistowhen: i.oTheotrialocourt'soconclusionowithoregardotootheofacts isopalpablyowrong; ii. o The o trial o court's o decision o was o based o on o an erroneousoviewoofolaw; iii.oTheotrialocourt'sojudgmentoisolikelyotooresultoin "graveomiscarriageoofojustice"; iv.oTheoentireoapproachoofotheotrialocourtoinodealing withotheoevidenceowasopatentlyoillegal; v.oTheotrialocourt'sojudgmentowasomanifestlyounjust andounreasonable; vi. o The o trial o court o has o ignored o the o evidence o or misread o the o material o evidence o or o has o ignored materialodocumentsolikeodyingodeclarations/reportoof theoballisticoexpert,oetc. vii. o This o list o is o intended o to o be o illustrative, o not exhaustive.

2.oTheoAppellateoCourtomustoalwaysogiveoproper weightoandoconsiderationotootheofindingsoofotheotrial court.

3.oIfotwooreasonableoviewsocanobeoreachedo-ooneothat leadsotooacquittal,otheootherotooconviction-theoHigh Courts/oAppellateoCourtsomustoruleoinofavoroofothe accused.

¶9The o applicant o is o seeking o special o leave o to o appeal o against judgmentoandoorderowherebyoAppellateocourtohasoacquittedotheorespondent.oIt isosettledolawothatograntingoofospecialoleaveotooappealoagainstoacquittaloisoa discretionaryopower.oHowever,osuchopowerohasotoobeoe,ercisedo#udiciously andotheo"ourtsoareonotopermittedotooe,erciseotheosameoatowhimsoorofancies andoarbitrarily.o(rbitrarinessohasoalwaysobeenoheldoanathemaotooe,erciseoof anyopower.

¶10From the perusal of impugned judgment, it is quite evident that there was no dispute qua dowry between the parties. The dispute was on account of medical condition of the appellant. The appellant was not in a position to have intercourse with her husband. The investigating officer during trial had deposed that there was no demand of dowry and dispute between the parties was on account of medical condition of the appellant. It appears that appellant with intent to implicate the respondent has attempted to make allegations of dowry. It was second marriage of the respondent which supports case of the respondent because demand of dowry in case of second marriage is abysmally negligent. The present appeal being devoid of merit, deserves to be dismissed. Accordingly, application, seeking special appeal to leave and appeal are hereby dismissed. ( JAGMOHAN BANSAL ) JUDGE

17.02.2023

In the High Court of Punjab and Haryana at Chandigarh CRM-A-1744-MA of 2017 (O&M) Date of Decision: 17.02.2023 Meenu Rani ---Petitioner versus State of Punjab and others ---Respondents CORAM: HON'BLE MR. JUSTICE JAGMOHAN BANSAL Present: Mr. Loveinder Kaur, Advocate for the petitioner Mr. Amish Sharma, AAG, Punjab ****