Smt.Anjani Shukla (Pandey) vs State Of U.P. & 3 Others
2019 Latest Caselaw 4595 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

A.F.R.
 
RESERVED
 
Court No. - 10
 

 
Case :- U/S 378 CR.P.C. DEFECTIVE No. - 87 of 2019
 
Applicant :- Smt.Anjani Shukla (Pandey)
 
Opposite Party :- State Of U.P. & 3 Others
 
Counsel for Applicant :- Naveen Kumar Pandey
 
Counsel for Opposite Party :- Govt. Advocate
 

 
Hon'ble Anil Kumar,J.

Hon'ble Shashi Kant,J.

Heard learned counsel for the appellant, learned A.G.A. and perused the record.

The present appeal has been filed against the judgment and order dated 22.12.2018 passed by learned Additional Sessions Judge/F.T.C. No.2, Gonda in Sessions Trial No.149 of 2017 arising out of Case Crime No.187 of 2016 under Sections-498-A and 307/34 of I.P.C. relating to Police Station-Dhanepur, District-Gonda.

Facts in brief of the present case are that the complainant/Devi Dayal Pandey r/o Sevak Purwa, Mauza Khazajot, P.S.-Dhanepur, District-Gonda filed a written statement on 22.06.2016 stating that his sister/Anjani has been married with Shiv Narayan Shukla @ Monu s/o Suresh Narayan Shukla, Village-Budh Sagar Purwa, Mauza Trilokpur, P.S.-Dhanepur, Gonda in the year 2015, however, his brother-in-law had affair with the another girl/Shilpi, which has been opposed by his sister.

On 22.06.2016 at about 5:00 p.m., he was informed that the accused-respondents had poured the kerosene oil on his sister and set her ablaze, as a result of which, her Saari and mattress were burnt. After getting the said information, the complainant and other family members reached the house of his sister and saved her life.

In view of the above said facts, a Case Crime No.187/2016 under Section-307 I.P.C. has been registered against the accused-respondent nos.2 to 4 and during investigation, Section-498-A I.P.C. was also added.

The Investigating Officer after completing the necessary investigation filed a charge sheet against the accused-respondent nos.2 to 4 in the Court of Magistrate. The case was committed to the Sessions Court. Accordingly, Sessions Trial No.149 of 2017 under Sections-498-A and 307/34 of I.P.C. has been registered.

Prosecution in order to prove its case has produced following documentary evidence :-

Written report as Ext.-K-1, Injury report as Ext. K-2, Site Plan as Ext.-K-3, Recovery memo as Ext. K-4, G.D. as Ext.-K-5, Charge sheet as Ext.-K-6, Chik F.I.R. as Ext K-7.

In addition to the documentary evidence, the prosecution has also produced the following witnesses :-

P.W.-1/Devi Dayal Pandey/complainant, P.W.-2/victim/Smt. Anjani Shukla, P.W.-3/Devnath Pandey, P.W.4/Dharmendra Kumar Pandey, P.W.-5/Dr. Alok Shukla, the then Medical Officer, P.W.-6/Sub Inspector, Ashwani Kumar Pandey, who has also been re-examined as P.W.-7.

The trial Court on the basis of the material available on record came to the conclusion that the prosecution has failed to establishe the guilt of the accused-respondent nos.2 to 4 on the basis of the evidence led by it, passed the judgment of acquittal against the accused-respondent nos.2 to 4.

Learned counsel for the appellant while pressing the leave to appeal as well as for admission submits that the trial Court had believed the statement of P.W.2/victim that she was burnt by the accused-respondent nos.2 to 4.

The statement of P.W.-1/author of F.I.R. is that after getting the information about the incident, when he reached the house of his sister, he found that the accused-respondent nos.2 to 4 were not present and his sister was wearing Petticoat and Blause, the half part of the said saaree was in the burnt condition. After changing her cloth/Saree P.W.1 took her sister/victim to the police station and lodged an F.I.R. against the accused-respondent nos.2 to 4.. The victim was in unconscious condition and she was referred to the District Hospital for medical treatment. Moreover, from the statement given by the prosecution witnesses, the allegation of demand of dowry by the accused-respondent nos.2 to 4 is fully established due to which victim was subjected to burn injury. So leave to appeal may be granted and appeal may be heard on merit.

We have heard learned counsel for the parties on admission of appeal and gone through the records available on record.

In the present case, , F.I.R. was lodged under Section 307 I.P.C. on 22.06.2016 and Case Crime No.187 of 2016 was registered. Thereafter additional charge under Section 498-A I.P.C. was added.

Section 498-A was added with a view to punishing husband and his relatives who harass or torture the wife to coerce her on her relatives to satisfy unlawful demands of dowry.

Section 498-A of the Indian Penal Code or Section 113-A of the Indian Evidence Act has not introduced invidious classification qua the treatment of a married woman by her husband or relatives of her husband vis-a-vis the other offenders. On the other hand, such women form a class apart whom from those who are married more than seven years earlier to the commission of such offence, because, with the passage of time after marriage and birth of children, there are remote chances of treating a married woman with cruelty by her husband or his relatives. Thus, the classification is reasonable and has close nexus with the object sought to be achieved, i.e., eradiction of the evil of dowry in the Indian social set-up and to ensure that the married women live with dignity at their matrimonial homes. (See Joshi v. State of Haryana, AIR 2003 SC 1386).

The essential ingredients of the provisions of Section 498-A I.P.C. Are as under :-

"(1) A woman must be married :

(2) She must be subjected to cruelty :

(3) Cruelty must be of the nature of :

(i) any wilful conduct as was likely to drive such woman;

(a) to commit suicide

(b) cause grave injury or danger to her life, limb, either mental or physical;

(ii) harassment of such woman, (1) with a view to coerce her to meet unlawful demand for property or valuable security; (2) or on account of failure of such woman or by any of her relation to meet the unalwful demand.

(iii) woman was subjected to such cruelty by (1) husband of that woman or (2) any relatie of the husband.

In the instant matter, the trial Court on the basis of the evidence led by the prosecution in regard to convict the accused-respondent nos.2 to 4 under Section 498-A I.P.C. came to the conclusion that the prosecution has failed to establish that the victim was subjected to cruelty or harass by the accused-respondent nos.2 to 4 for demand of dowry. The said finding recorded by the trial Court is perfectly valid because as per the statement given by the P.W.-1/author of F.I.R. when the victim went to her matrimonial house in the month of July, 2006, her father-in-law and husband had demanded a car from the P.W.-1, however, the said telephonic version was not proved by the prosecution as per provisions of Section 65-B of the Indian Evidence Act. Further the trial Court regarding the provision under Section 498-A I.P.C. has given a finding that there are major contradictions in the statements of P.W.-3/father of victim and P.W.4/brother of victim in respect to the demand of dowry.

And in the F.I.R. lodged by P.W.-1, it has not been mentioned that victim was subjected to cruelty or harassement by the accused-respondent nos.2 to 4 for demand of dowry. The said finding given by the trial Court is perfectly valid. So, we do not find any good ground or reason to disbelieve the same.

Sofar as the judgment of acquittal passed by the trial Court under Section 307 read with 34 I.P.C. is concerned, as per case of the prosecution, the accused-respondent nos.2 to 4 had poured the kerosene oil on the victim, as a result of which, her saree was burnt. Thereafter, she opened her saree and ran away outside the house to save her life. After beating her by the accused-respondent nos.2 to 4, she became unconscious.

Moreover, from the statement of P.W.-1, the position which emerges out is that after getting information about the incident in question, he went to the house of his sister and found that she was wearing Petticoat and Blause and her saree and mattress was in burnt condition. After changing her cloth, P.W.-1 took her police station and lodged an F.I.R. Thereafter, she was referred to the District Hospital for medical treatment in unconscious condition.

P.W.-5, Dr. Alok Shukla, the then Medical Officer had examined the victim and as per her medical examination report, following injuries were found on the body of the victim :-

"चोट संख्या-१- नीलगू निशान २ से. मी. X १ से. मी. सर के बांयी तरफ बांये कान से ५ से. मी. ऊपर था, पेसेंट मूर्छित अवस्था में थी, जिसे जेरे निगरानी रखा गया था |

चोट संख्या-२ - नीलगू निशान ५ X २ से. मी. जो दाहिने पीठ पर स्कैपुला से ११ से. मी. निचे था |

चोट संख्या-३ - नीलगू निशान ३ से. मी. X १. ५ से. मी. बांयी जांघ के बांयी तरफ बाहर की तरफ घुटने से ३ से. मी. ऊपर |

चोट संख्या-४ - नीलगू निशान १ से. मी. X १ से. मी. बांयी कुहनी से १० से. मी. नीचे |

P.W.5/Dr. Alok Shukla in his statement has categorically stated that when the victim was brought to the hospital for medical check up, she was not in unconscious condition.

He has further stated that so far as injury no.1 is concerned, except the injury no.1, other injuries found on the body of the victim are simple injuries and there was no smell of Kerosene oil from her body. Injury no.1 can be caused when a person will hit from the wall.

In the instant matter, sofar as the witnesses of facts barring P.Ws.-1 and 2, who was produced in order to prove its case, are not eye-witnesses, as such, in order to decide the controversy involved in the present case, it is to be examined that whether on the basis of the statement of P.W.2 and medical evidence, any offence is made out against the accused-respondent nos.2 to 4 or not.

As stated above, after getting the information about the incident in question, P.W.-1/author of F.I.R. and brother of victim reached the matrimonial house of victim and took her police station after changing her cloths and lodged the F.I.R. Thereafter, victim was referred to District Hospital for medical treatment in unconscious condition. The said fact is not correct as per statement given by P.W.-5, Dr. Alok Shukla, the then Medical Officer, who had examined the victim.

In addition to the above said facts, the statement given by P.W.-2/victim that injuries found on her body were caused by the accused-respondent nos.2 to 4 by pouring kerosene oil is not correct in view of the medical examination report of the victim as well as statement given by P.W.5, Dr. Alok Shukla, rather the same does not corroborate with the medical evidence.

Further, it is now well settled by a series of decisions of the Hon'ble Apex Court that while appreciating variance between medical evidence and ocular evidence, oral evidence of eye-witnesses has to get primacy as medical evidence is basically opinionative. But when the Court finds inconsistency in the evidence given by the eye-witness which is totally inconsistent to that given by the medical experts, then evidence is appreciated in a different perspective by the Courts.

In the case of Sahebrao Mohan Berad v. State of Maharashtra, 2011 (73) ACC 931 (SC), Hon'ble the Apex Court has held that the opinion of doctor who has examined the deceased and conducted the post-mortem is of a competent witness to speak about the nature of injuries and cause of death. Unless there is something inherently defective, the Court cannot substituted its opinion for that of the doctor.

In the case of Haryana v. Bhagirath, 1999 (39) ACC 175 (SC), Hon'ble the Apex Court has held that where the medical evidence is at variance with ocular evidence, it has to be noted that it would be erroneous to accord undue primacy to the hypothetical answers of medical witnesses to exclude the eye-witnesses account which have to be tested independently and not treated as the variable keeping the medical evidence as the constant.

Taking into consideration the said facts, the next question which is to be considered that what procedure is to be followed by the Appellate Court while considering an appeal for admission filed against the judgment of acquittal passed by trial Court.

Hon'ble the Apex Court in the case of Murugesan vs. State Through Inspector of Police (2012) 10 SCC 383 after placing reliance on its earlier judgment in the case of Chandrappa vs. State of Karnataka (2007) 4 SCC 415 had the occasion to consider the broad principles of law governing the power of the High Court under Section 378 of the Code of Criminal Procedure, 1973. The summary of the relevant principles of law set out in para 21 of the judgment which may be extracted herein as under:

"21. A concise statement of the law on the issue that had emerged after over half a century of evolution since Sheo Swarup Vs. King Emperor, (1933-34) 61 IA 398 : AIR 1934 PC 227 (2) is to be found in para 42 of the Report in Chandrappa Vs. State of Karnataka(2007) 4 SCC 415. The same may, therefore, be usefully noticed below:

"42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge:

(i) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.

(ii) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.

(iii) Various expressions, such as, ''substantial and compelling reasons', ''good and sufficient grounds', ''very strong circumstances', ''distorted conclusions', ''glaring mistakes', etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of ''flourishes of language' to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.

(iv) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.

(v) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."

Keeping in view of the aforesaid settled position of law while dealing with an appeal against acquittal, we have delved into the evidence available on record and have come to the conclusion that the finding of acquittal recorded by learned trial court is fully borne out by the evidence on record and the view taken by the learned trial Judge is equally 'a possible view'.

Having considered the totality of the circumstances of the present case, it cannot be said that the view taken by the trial Court in acquitting the accused-respondents is perverse or unreasonable.

We are of the opinion that the trial Judge has committed no illegality in recording the finding of acquittal, hence, no interference is called for in the judgment and order dated 22.12.2018 passed by the trial Court.

Accordingly, we do not find any good ground or reason to grant the leave to appeal, as such, the same is dismissed. Consequently, the memorandum of appeal does not survive and stands dismissed.

.

(Shashi Kant,J.) (Anil Kumar,J.)

Order Date :- 16.05.2019/Mahesh