This criminal revision is directed against the order of the Judicial Magistrate No.1, Kovipatti, Thoothukudi District, in C.C.No. 122 of 2008, dated 23.07.2009.
2.The case of the prosecution is that due to previous motive with regard to property dispute between the accused and the de-facto complainant, on 20.06.2008, the accused waylaid the de-facto complainant and threatened him by showing aruval. The Sub Inspector of Police attached to Kovilpatti Police Station, has filed a final report against the accused examining the witnesses.
3.In the trial court, 6 witnesses were examined and 6 documents were marked. When the accused was questioned about the incriminating circumstances, he denied the same. The trial court acquitted the accused from the charges levelled against him. Against the order of acquittal, the present criminal revision has been filed by the revision petitioner/PW1. http://www.judis.nic.in 3
4.The learned counsel for the revision petitioner/PW1 argued that the trial court erred in acquitting the accused from the charges levelled against him; that in this case, very lodging of the criminal complaint after the threat was made by the accused itself, a valid circumstance to infer that PW1 has been put under apprehension and as such, the offence of criminal intimidation must have been declared to have committed; that in so far as the invocation of 506(ii) IPC is concerned, not only PW1, but PW2 was made it clear in the form of expressing clinching, cogent and unimpeachable testimonies; that the evidence of the prosecution witnesses namely PW1 and PW2 are corroborated by the evidence of PW6 and as such, the accused should have convicted; that the reasons given by the trial Judge in acquitting the accused are against the evidence both oral and documentary available on record and hence, the criminal revision has to be allowed.
5.On the other hand, the Government Advocate (Criminal side) appearing for the 1st respondent argued that there was no procedural illegality or manifest error of law in the judgment of the trial court and the trial court passing that order had not overlooked the evidence clinching the issue and the trial court only after http://www.judis.nic.in 4 analysing the entire evidence and document, acquitted the accused and prays that the criminal revision may be dismissed.
6.Heard the learned counsel for the petitioner and learned Government Advocate (Criminal side) appearing for the 1st respondent and also perused the materials available on record.
7.It is seen from the records that the trial court acquitted the accused on the ground that there are lot of contradictions in the evidence of PW1 and other prosecution witnesses.
8.The contention raised on the side of the petitioner/PW1 is that for attracting the offence
Section 294(b) IPC, the very utterance of obscene and abusing language itself would make out an offence, since normally every prudent man would get suffered while at the time of receiving an abusing language from the other that too when it was made in the presence of third party.
9.At this juncture, it is necessary to refer
Section 294(b) IPC, which would run thus:-
“Sings, recites or utters any obscene song, ballad or words, in or near any public place, http://www.judis.nic.in 5 shall be punished with imprisonment of either description for a term which may extend to three months, or with fine, or with both.”
10.PW1 has not stated in his complaint that PW2 knew the occurrence. PW2 deposed that on 20.06.2008 at 2.00 pm, while her husband passing through the lane, the accused restrained and used filthy language and threatened him by showing aruval and when she shouted, the accused ran away. But PW1 in his complaint stated that due to property dispute on 20.06.2008 at 2.00 pm, the accused drove PW1 to the lane and restrained him and used filthy language and threatened PW1 with aruval. Hence, the evidence of PW1 is not corroborated with the contents found in Ex.P1 complaint.
11.PW1 in his complaint and PW1 and PW2 during their chief examination stated that the occurrence took place in the lane. But during their cross examination stated that rk;gtk; ele;j ,lk; flt[ vd;W brhd;dhy; rhpay;y. Hence, there are contradiction in respect of the place of occurrence. http://www.judis.nic.in 6
12.PW1 during his evidence stated that the accused attempted to assault him with aruval. But PW2 during her evidence stated that the accused came and restrained her husband and assaulted her husband with aruval. There are contradictory evidence in respect of restraining PW1 by the accused.
13.PW1 stated in his complaint that the accused drove him to the lane and restrained him. But PW1 and PW2 stated during their evidence that while PW1 came in the lane, the accused restrained him. Hence, it is held that there are contradictions in the evidence in respect of restraining PW1 by the accused.
14.PW1 and PW2 deposed that the accused restrained him and used filthy language. PW1 has not stated that no independent witness deposed that the accused used filthy language as against PW1. For attracting
Section 294(b) IPC, the accused should have scolded the victim in the public place and due to it, he annoyed.
Section 294(b) IPC reads as follows:-
“Sings, recites or utters any obscene song, ballad or words, in or near any public place, shall be punished with imprisonment of either description for a term which may extend to three months, or with fine, or with both.” http://www.judis.nic.in 7 Hence, this court is of the considered view that the offence under
Section 294(b) IPC is not made out.
15.In this case, PW1 is the complainant and PW2 is the wife of PW1. PW1 in his complaint stated that due to property dispute, on 20.06.2008 at 2.00 pm, the accused drove his vehicle into the lane, restrained him and attempted to murder him with aruval and said that cd;id btl;o bfhd;why; jhd; ,e;j gpur;rpid jPUk; ehd; epk;kjpahf thHKoa[k;”and then he went to his house. PW2 deposed that on 20.06.2008 at 2.00 pm, when her husband came in the lane, the accused restrained him with aruval and said “njtoah kfnd cd;id btl;odhy; jhd; tHpf;F tUtha;” and when she shouted the accused run away. PW1 in his complaint and evidence stated that the accused threatened him by showing aruval. PW1 has not stated that due to threat by the accused, he feared.
16.At this juncture, it is necessary to refer
Section 506(ii), which would run thus:-
“If threat be to cause death or grievous hut. etc. And if the threat be to cause death or grievous hurt, or to cause the destruction of any http://www.judis.nic.in 8 property by fire, or to cause an offence punishable with death or imprisonment for lief or with imprisonment for a term which may extend to seven years, or to impute unchastity to a woman, shall be punishable with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.”
17.On perusal of the complaint and evidence, it reveals that the offence under
Section 506(ii) IPC is not made out.
18.At this juncture, it is more relevant to refer the decision reported in (2002) 9 SCC 393 [Thankappan Nadar and others vs. Gopala Krishnan and another), the Hon'ble Apex court has held as follows:-
“6.In a revision application filed by the de facto complainant against the acquittal order, the Court's jurisdiction under
section 397 read with
section 401 crpc is limited. The law on the subject is well settled. Instead of referring to various judgments, we would only refer to a few decisions rendered by this Court. In Akalu Ahir v. Ramdeo Ram 1973 2 SCC 583 this Court has (in SCC pp. 587-88, para 8) observed thus:
http://www.judis.nic.in 9 “This Court, however, by way of illustration, indicating 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;
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.” http://www.judis.nic.in 10 The Court further observed: (SCC p. 588, para 10) “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 reappraise the evidence for itself as if it is acting as a court of appeal and then order a retrial. 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.” (emphasis added)
7.In our view, the emphasised portion of the aforesaid judgment is applicable in the present case. It is unfortunate that such a serious offence inspired by rivalry in the matter of election should go unpunished. However, that would not be a valid ground for ignoring or for not strictly following the law as enunciated by this Court, which does not empower the Court exercising the revisional jurisdiction to reappreciate the evidence.
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8.In Vimal Singh v. Khuman Singh 1998 7 SCC 223 this Court after considering various decisions, observed as under: (SCC pp. 226-27, para 9) “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 http://www.judis.nic.in 12 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.”
19.On coming to the instant case on hand, there was no procedural illegality or manifest error in the order passed by the trial court. Hence, it is not necessary to interfere with the findings of the trial court. Keeping in mind the law laid down by the Hon'ble Apex court in the above decision and also the facts of this case, this court is of the considered view that the impugned order of the trial court do not call for any interference by this court.
20.In the result, this criminal revision fails and the same is dismissed.
20.11.2018 Index:Yes/No Internet:Yes/No er http://www.judis.nic.in 13 T.KRISHNAVALLI,J er To,
1.The Judicial Magistrate No.1, Kovilpatti.
2.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
Judgment made in Crl.R.C(MD)No.682 of 2009 20.11.2018 http://www.judis.nic.in 14 http://www.judis.nic.in