1. The petitioner is the wife of the respondent. The latter was convicted by the first class Magistrate of Shermadevi under Section 326, Indian Penal Code, and sentenced to 18 months' rigorous imprisonment for mutilating his wife by cutting off completely her right ear with a coffee pruning knife and cutting off a part of the left ear also as well as inflicting the injuries on her nose.
2. The Sessions Judge of Tinnevelly, on appeal, acquitted the respondent.
3. The Additional District Magistrate was addressed by a petition to move Government to file an appeal. He declined to do so though he expressed the following opinion, 'there can be no reasonable doubt that the petitioner's husband inflicted the outrage on her.'
4. As a last resource the petitioner filed the Criminal Revision Petition now under consideration which was admitted and the record called for.
5. A preliminary objection was taken by the respondent's counsel that the Court has no power to revise the decision of the Sessions Judge at all and certainly cannot do so on the ground of misappreciation of evidence.
6. There is nothing in the Criminal Procedure Code to thus limit the power of this Court. The various decisions quoted moreover do not support this view. On the contrary they point to the conclusion that this Court has power to revise a judgment of acquittal though such power should be exercised with great caution. The preliminary objection was accordingly overruled.
7. From a consideration of the case on the merits, I have no doubt that this is a fit and proper case for the exercise of the exceptional powers of this Court. The case was tried originally by a Magistrate of experience and ability who seems to have realised the difficulties with which the petitioner had to contend in securing justice against her husband, a man of wealth and influence. On the other hand, the Sessions Judge appears to have ignored the fact altogether for he failed to observe that the cross-examination of defence witness No. 1 (the Village Munsif) conclusively proves that the Police Sub-Inspector (since dismissed from the force) did not record the whole of the petitioner's statement when she made her first complaint some 13 hours after the occurrence. The reasons given by the Sessions Judge for acquitting the respondent are given in paragraph 5 of his judgment. Stated briefly they were as follows--The evidence of the witnesses called to corroborate the complaint was unreliable for reasons given. The complainant herself had proved her story. Her unsupported statement could not be implicitly accepted. A conviction based on mere surmise cannot stand.
8. I will accept the finding of the Sessions Judge that the evidence of the other prosecution witnesses was unworthy of credit; but even setting this aside, there remains a mass of evidence of the most cogent nature. That the Sessions Judge has entirely ignored Exhibit I the statement given by the complainant to the Police when intercepted on her way to the Hospital 13 hours after the loss of her ear, cannot be explained away. It is substantially the same as the story told later in Court. That the complainant's ear was mutilated is a fact beyond dispute. The nature of the injuries inflicted (vide Exhibits B and B I) is itself a most significant circumstance. Thieves, it is true, mutilate woman's ears in attempting to secure jewels, but not in the manner, or to the extent, described. It is impossible the injuries could have been self-inflicted or voluntarily undergone.
9. Again, what was the conduct of the husband? He made no complaint and took no step to punish those who had subjected his wife to the brutal treatment, if others were, in fact, guilty. The story of an alleged dacoity during his absence was believed by no one. There is no evidence to support this belated story. If the complainant's story is true, there has, no doubt, been a most grievous failure of justice. As it is, evident that the Sessions Judge has completely overlooked a mass of evidence in support of the prosecution which if unexplained, is cogent evidence of the respondent's guilt, the decision of the appellate Court must be set aside and the appeal remanded for re-hearing on the merits. There is no need to transfer the appeal to the Sessions Judge of another District as the Sessions Judge who heard it has since left the Tinnevelly District.