Devendra Singh vs State Of U.P. And 7 Ors.
2022 Latest Caselaw 6526 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 42					  
 

 
Case :- CRIMINAL APPEAL U/S 372 CR.P.C. No. - 254 of 2022
 

 
Appellant :- Devendra Singh
 
Respondent :- State Of U.P. And 7 Ors.
 
Counsel for Appellant :- Ram Behari Saxena
 
Counsel for Respondent :- G.A.
 

 
Hon'ble Vivek Kumar Birla,J.

Hon'ble Vikas Budhwar,J.

(Oral Judgment by Hon'ble Vikas Budhwar, J.)

1. This appeal under Section 372 of Criminal Procedure Code, 1973 (in short 'Cr.P.C.'), instituted by the appellant informant seeking to challenge the judgment and order dated 14.12.2018 passed by Additional District and Sessions Judge, (Faminine) Fast Tract Court-1, Mathura in Sessions Trial No.40 of 2012 (State Vs. Tejveer & others) in Case Crime No.218 of 2010, under Sections 498A, 201, 302, 304 IPC, P.S. Mant, District Mathura acquitting the accused opposite parties No. 2 to 8.

2. The factual matrix of the case as worded in the present appeal are that the appellant-informant being Devendra Singh son of Deshraj had submitted a written report in Police Station Mant, District Mathura with an allegation that the sister of the appellant-informant being Shreemati solemnised marriage with Tejveer son of Vijendra Singh being accused opposite party no.2 in the year 2000.

3. As per the written report the opposite party no.2 being Tejveer son of Vijendra Singh husband opposite party and the in-laws of the sister of the informant demanded dowry and harassed his sister pursuant whereof a first information report was lodged against the accused herein under being FIR No. 3 of 2006, under Sections 498A, 322 IPC and also Criminal Case No.141 of 2007, under Sections 498A and 323 IPC. It has further been alleged that proceedings under Section 125 Cr.P.C. was also lodged by the sister of the informant which got registered as Case No.502 of 2007 before the Police Station Raya. However, thereafter compromise/settlement was entered into between the parties and thereafter the informant sister being Shreemati started residing in her in-laws place. Allegation was also made to the effect that consequent to the staying of the sister of the informant in-laws place the attitude of the accused husband and the in-laws did not change and they acted in a manner which was unbecoming of husband and in-laws and the position which existed prior to lodging of the above mentioned proceedings continued.

4. As per prosecution the informant use to visit his sisters in-laws place in every two months in order to know about his sisters marital position and relationship of hers with her in-laws. As per the prosecution theory on 23.10.2010 the informant proceeded to his uncle's (Foofa) place being Dharmpal son of Mohan Lal, who was residing near the house of her sister's in-laws place. According to the informant in the intervening night of 23/24.10.2010, when he was sleeping in his uncle's place then at 2.30 a.m. his uncle heard screaming of Shreemati and he woke up the informant and thereafter the informant along with his uncle Dharmpal immediately proceeded to the house of his sister and at that relevant point of times the accused herein met him as they were not sleeping and they apprised the informant that Shreemati (deceased) was having eight month pregnancy and due to certain complications they were taking the deceased to Raya hospital.

5. Accordingly, the complainant and his uncle Dharmpal apprised the in-laws of the deceased that they are proceeded to their own house and they will come in the next morning in the hospital. As per the prosecution theory on the next morning the informant along with his second uncle (Phupha), Sri Man Singh son of Sri Hari Singh along with Dharmpal proceeded to the hospital in question and when they traced the whereabouts of the deceased they could not find her thus according to the informant, the husband and the in-laws and the other accused herein have disposed of his sister Shreemati and the baby which was in the womb and hidden the dead body. It has further come on record that the first information report was lodged on 29.10.2010 before the police station Mant which was registered as Case Crime No.218 of 2010, under Sections 304, 498A & 201 IPC against the accused herein.

6. Consequent to the lodging of the first information report in question one Sri Anil Kumar Sharma was nominated as the Investigating Officer. Records further reveal that site plan was also prepared and investigation was put to motion. A charge sheet purported to be under Section 304, 498A and 201 IPC was also submitted against the accused. In the Sessions Trial No.40 of 2012 on 25.5.2012 proceedings were also undertaken under Section 319 of the Cr.P.C. and by virtue of order dated 8.7.2015 case was committed to sessions and subsequently charges were read over to the accused. Accused pleaded innocence and not guilty.

7. In order to bring home the charges, the prosecution produced the following witnesses, namely:

1.

Devendra Singh

PW1

2.

Dharmpal

PW2

3.

Ved Prakash

PW3

4.

Karan Singh

PW4

5.

Munshi Lal Saraswat

PW5

6.

Updesh Kumar

PW6

7.

Anil Kumar Sharma

PW7

The prosecution produced the following documents in order to prove the charge:-

1.

Written report

Ex.ka1

2.

Report of Omvati Nursing Home

Ex.ka2

3.

Receipts of Omvati Nursing Home

Ex.ka3

4.

Receipts of Omvati Nursing Home

Ex.ka4

5.

First Information Report

Ex.ka5

6.

Nakal Report

Ex.ka6

7.

Site plan

Ex.ka 7

Charge sheet

Ex.ka 8

The defence produced one Sri Charan Singh, DW2 in order to substantiate their version.

8. We have heard Sri Aishwarya Saxena, holding brief of Sri R.B. Saxena, learned counsel for the appellant and Sri Ratan Singh, learned A.G.A. for the State.

9. Before delving upon the issue in question which is being sought to be raised at the behest of the informant/complainant while filing the present appeal purported to be under Section 372 Cr.P.C. against the order of acquittal so passed in favour of the accused herein.

10. This Court has to bear in mind the judicial verdict and the mandate so envisaged by the Hon'ble Apex Court wherein the courts of law have been cautioned while exercising jurisdiction under Section 372 Cr.P.C. as well as Section 378 of the Cr.P.C. when the courts of law have been occasioned to deal with the Government Appeal against the acquittal.

11. The Hon'ble Apex Court in the series of decisions have been consistently mandating that it is well settled principle of law that appellate courts hearing the appeal filed against the judgment and the order of the acquittal should not overrule or otherwise disturbing the judgment acquittal, if the appellate court does not find substantiate and compelling reasons for doing so.

12. Nonetheless if the trial courts conclusion with regard to the facts is palpably wrong if the trial court decision was based on erroneous view of law and the judgment is likely result in grave miscarriage of justice and the approach proceeded towards wrong direction or the trial court has ignored the evidence or misread the material evidence which should have determining the factor in the lis of the matter then obviously the appellate court is right in interfering with the order acquitting the accused. However, Hon'ble Apex Court has further held that in case two views are possible and the view so taken by the trial court while acquitting the accused is a plausible view then in the backdrop of the fact that there is double presumption of innocence available to the accused then obviously the appellate court should not interfere with the order of acquittal.

13. The above noted proposition of law is clearly spelt out in umpty number of decisions, some of them are as under namely:-Tota Singh and another vs. State of Punjab, (1987) 2 SCC 529, Ramesh Babulal Doshi vs. State of Gujarat, (1996) 9 SCC 225, State of Rajesthan vs. State of Gujarat, (2003) 8 SCC 180, State of Goa vs. Sanjay Thakran, (2007) 3 SCC 755, Chandrappa and others vs. State of Karnataka, (2007) 4 S.C.C. 415, Ghurey Lal vs. State of U.P., (2008) 10 SCC 450, Siddharth Vashishtha Alias Manu Sharma vs. State (NCT of Delhi), (2010) 6 SCC 1, Babu vs. State of Kerala, (2010) 9 SCC 189, Ganpat vs. State of Haryana, (2010) 12 SCC 59, Sunil Kumar Sambhudayal Gupta (Dr.) and others vs. State of Maharashtra, (2010) 13 SCC 657, State of U.P. vs. Naresh, (2011) 4 SCC 324, State of M.P. vs. Ramesh, (2011) 4 SCC 786, and Jayaswamy vs. State of Karnataka, (2018) 7 SCC 219.

14. The Apex Court recently in Jafarudheen & Ors. vs. State of Kerala, JT 2022(4) SC 445 has observed as under:-

"DISCUSSION Scope of Appeal filed against the Acquittal:

25. While dealing with an appeal against acquittal by invoking Section 378 of the Cr.PC, the Appellate Court has to consider whether the Trial Court's view can be termed as a possible one, particularly when evidence on record has been analyzed. The reason is that an order of acquittal adds up to the presumption of innocence in favour of the accused. Thus, the Appellate Court has to be relatively slow in reversing the order of the Trial Court rendering acquittal. Therefore, the presumption in favour of the accused does not get weakened but only strengthened. Such a double presumption that enures in favour of the accused has to be disturbed only by thorough scrutiny on the accepted legal parameters. Precedents:

Mohan @Srinivas @Seena @Tailor Seena v. State of Karnataka, [2021 SCC OnLine SC 1233] as hereunder: -

"20. Section 378 CrPC enables the State to prefer an appeal against an order of acquittal. Section 384 CrPC speaks of the powers that can be exercised by the Appellate Court. When the trial court renders its decision by acquitting the accused, presumption of innocence gathers strength before the Appellate Court. As a consequence, the onus on the prosecution becomes more burdensome as there is a double presumption of innocence. Certainly, the Court of first instance has its own advantages in delivering its verdict, which is to see the witnesses in person while they depose. The Appellate Court is expected to involve itself in a deeper, studied scrutiny of not only the evidence before it, but is duty bound to satisfy itself whether the decision of the trial court is both possible and plausible view. When two views are possible, the one taken by the trial court in a case of acquittal is to be followed on the touchstone of liberty along with the advantage of having seen the witnesses. Article 21 of the Constitution of India also aids the accused after acquittal in a certain way, though not absolute. Suffice it is to state that the Appellate Court shall remind itself of the role required to play, while dealing with a case of an acquittal.

21. Every case has its own journey towards the truth and it is the Court's role undertake. Truth has to be found on the basis of evidence available before it. There is no room for subjectivity nor the nature of offence affects its performance. We have a hierarchy of courts in dealing with cases. An Appellate Court shall not expect the trial court to act in a particular way depending upon the sensitivity of the case. Rather it should be appreciated if a trial court decides a case on its own merit despite its sensitivity.

22. At times, courts do have their constraints. We find, different decisions being made by different courts, namely, trial court on the one hand and the Appellate Courts on the other. If such decisions are made due to institutional constraints, they do not augur well. The district judiciary is expected to be the foundational court, and therefore, should have the freedom of mind to decide a case on its own merit or else it might become a stereotyped one rendering conviction on a moral platform. Indictment and condemnation over a decision rendered, on considering all the materials placed before it, should be avoided. The Appellate Court is expected to maintain a degree of caution before making any remark.

23. This court, time and again has laid down the law on the scope of inquiry by an Appellate court while dealing with an appeal against acquittal under Section 378 CrPC. We do not wish to multiply the aforesaid principle except placing reliance on a recent decision of this court in Anwar Ali v. State of Himanchal Pradesh, (2020) 10 SCC 166:

14.2. When can the findings of fact recorded by a court be held to be perverse has been dealt with and considered in paragraph 20 of the aforesaid decision, which reads as under : (Babu case [Babu v. State of Kerala, (2010) 9 SCC 189 : (2010) 3 SCC (Cri) 1179]) "20. The findings of fact recorded by a court can be held to be perverse if the findings have been arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant/inadmissible material. The finding may also be said to be perverse if it is "against the weight of evidence", or if the finding so outrageously defies logic as to suffer from the vice of irrationality.

(Vide Rajinder Kumar Kindra v. Delhi Admn. [Rajinder Kumar Kindra v. Delhi Admn., (1984) 4 SCC 635 : 1985 SCC (L&S) 131], Excise & Taxation Officer-cum-Assessing Authority v. Gopi Nath & Sons [Excise & Taxation Officer-cum-Assessing Authority v. Gopi Nath & Sons, 1992 Supp (2) SCC 312], Triveni Rubber & Plastics v. CCE [Triveni Rubber & Plastics v. CCE, 1994 Supp (3) SCC 665], Gaya Din v. Hanuman Prasad [Gaya Din v. Hanuman Prasad, (2001) 1 SCC 501], Aruvelu [Arulvelu v. State, (2009) 10 SCC 206 : (2010) 1 SCC (Cri) 288] and Gamini Bala Koteswara Rao v. State of A.P. [Gamini Bala Koteswara Rao v. State of A.P., (2009) 10 SCC 636 : (2010) 1 SCC (Cri) 372] )"

It is further observed, after following the decision of this Court in Kuldeep Singh v. Commr. of Police [Kuldeep Singh v. Commr. of Police, (1999) 2 SCC 10 : 1999 SCC (L&S) 429], that if a decision is arrived at on the basis of no evidence or thoroughly unreliable evidence and no reasonable person would act upon it, the order would be perverse. But if there is some evidence on record which is acceptable and which could be relied upon, the conclusions would not be treated as perverse and the findings would not be interfered with.

14.3. In the recent decision of Vijay Mohan Singh [Vijay Mohan Singh v. State of Karnataka, (2019) 5 SCC 436 : (2019) 2 SCC (Cri) 586], this Court again had an occasion to consider the scope of Section 378 CrPC and the interference by the High Court [State of Karnataka v. Vijay Mohan Singh, 2013 SCC OnLine Kar 10732] in an appeal against acquittal. This Court considered a catena of decisions of this Court right from 1952 onwards. In para 31, it is observed and held as under:

"31. An identical question came to be considered before this Court in Umedbhai Jadavbhai [Umedbhai Jadavbhai v. State of Gujarat, (1978) 1 SCC 228 : 1978 SCC (Cri) 108]. In the case before this Court, the High Court interfered with the order of acquittal passed by the learned trial court on reappreciation of the entire evidence on record. However, the High Court, while reversing the acquittal, did not consider the reasons given by the learned trial court while acquitting the accused. Confirming the judgment of the High Court, this Court observed and held in para 10 as under:

''10. Once the appeal was rightly entertained against the order of acquittal, the High Court was entitled to reappreciate the entire evidence independently and come to its own conclusion. Ordinarily, the High Court would give due importance to the opinion of the Sessions Judge if the same were arrived at after proper appreciation of the evidence.

This rule will not be applicable in the present case where the Sessions Judge has made an absolutely wrong assumption of a very material and clinching aspect in the peculiar circumstances of the case.'

31.1. In Sambasivan [Sambasivan v. State of Kerala, (1998) 5 SCC 412 : 1998 SCC (Cri) 1320], the High Court reversed the order of acquittal passed by the learned trial court and held the accused guilty on reappreciation of the entire evidence on record, however, the High Court did not record its conclusion on the question whether the approach of the trial court in dealing with the evidence was patently illegal or the conclusions arrived at by it were wholly untenable.

Confirming the order passed by the High Court convicting the accused on reversal of the acquittal passed by the learned trial court, after being satisfied that the order of acquittal passed by the learned trial court was perverse and suffered from infirmities, this Court declined to interfere with the order of conviction passed by the High Court. While confirming the order of conviction passed by the High Court, this Court observed in para 8 as under:

''8. We have perused the judgment under appeal to ascertain whether the High Court has conformed to the aforementioned principles. We find that the High Court has not strictly proceeded in the manner laid down by this Court in Doshi case [Ramesh Babulal Doshi v. State of Gujarat, (1996) 9 SCC 225 : 1996 SCC (Cri) 972] viz. first recording its conclusion on the question whether the approach of the trial court in dealing with the evidence was patently illegal or the conclusions arrived at by it were wholly untenable, which alone will justify interference in an order of acquittal though the High Court has rendered a well-considered judgment duly meeting all the contentions raised before it. But then will this non-compliance per se justify setting aside the judgment under appeal? We think, not. In our view, in such a case, the approach of the court which is considering the validity of the judgment of an appellate court which has reversed the order of acquittal passed by the trial court, should be to satisfy itself if the approach of the trial court in dealing with the evidence was patently illegal or conclusions arrived at by it are demonstrably unsustainable and whether the judgment of the appellate court is free from those infirmities; if so to hold that the trial court judgment warranted interference. In such a case, there is obviously no reason why the appellate court's judgment should be disturbed. But if on the other hand the court comes to the conclusion that the judgment of the trial court does not suffer from any infirmity, it cannot but be held that the interference by the appellate court in the order of acquittal was not justified; then in such a case the judgment of the appellate court has to be set aside as of the two reasonable views, the one in support of the acquittal alone has to stand. Having regard to the above discussion, we shall proceed to examine the judgment of the trial court in this case.' 31.2. In K. Ramakrishnan Unnithan [K. Ramakrishnan Unnithan v. State of Kerala, (1999) 3 SCC 309: 1999 SCC (Cri) 410], after observing that though there is some substance in the grievance of the learned counsel appearing on behalf of the accused that the High Court has not adverted to all the reasons given by the trial Judge for according an order of acquittal, this Court refused to set aside the order of conviction passed by the High Court after having found that the approach of the Sessions Judge in recording the order of acquittal was not proper and the conclusion arrived at by the learned Sessions Judge on several aspects was unsustainable. This Court further observed that as the Sessions Judge was not justified in discarding the relevant/material evidence while acquitting the accused, the High Court, therefore, was fully entitled to reappreciate the evidence and record its own conclusion. This Court scrutinised the evidence of the eyewitnesses and opined that reasons adduced by the trial court for discarding the testimony of the eyewitnesses were not at all sound. This Court also observed that as the evaluation of the evidence made by the trial court was manifestly erroneous and therefore it was the duty of the High Court to interfere with an order of acquittal passed by the learned Sessions Judge.

31.3. In Atley [Atley v. State of U.P., AIR 1955 SC 807 : 1955 Cri LJ 1653], in para 5, this Court observed and held as under:

''5. It has been argued by the learned counsel for the appellant that the judgment of the trial court being one of acquittal, the High Court should not have set it aside on mere appreciation of the evidence led on behalf of the prosecution unless it came to the conclusion that the judgment of the trial Judge was perverse. In our opinion, it is not correct to say that unless the appellate court in an appeal under Section 417 CrPC came to the conclusion that the judgment of acquittal under appeal was perverse it could not set aside that order. It has been laid down by this Court that it is open to the High Court on an appeal against an order of acquittal to review the entire evidence and to come to its own conclusion, of course, keeping in view the well-established rule that the presumption of innocence of the accused is not weakened but strengthened by the judgment of acquittal passed by the trial court which had the advantage of observing the demeanour of witnesses whose evidence have been recorded in its presence.

It is also well settled that the court of appeal has as wide powers of appreciation of evidence in an appeal against an order of acquittal as in the case of an appeal against an order of conviction, subject to the riders that the presumption of innocence with which the accused person starts in the trial court continues even up to the appellate stage and that the appellate court should attach due weight to the opinion of the trial court which recorded the order of acquittal.

If the appellate court reviews the evidence, keeping those principles in mind, and comes to a contrary conclusion, the judgment cannot be said to have been vitiated. (See in this connection the very cases cited at the Bar, namely, Surajpal Singh v. State [Surajpal Singh v. State, 1951 SCC 1207 : AIR 1952 SC 52]; Wilayat Khan v. State of U.P. [Wilayat Khan v. State of U.P., 1951 SCC 898 : AIR 1953 SC 122]) In our opinion, there is no substance in the contention raised on behalf of the appellant that the High Court was not justified in reviewing the entire evidence and coming to its own conclusions.' 31.4. In K. Gopal Reddy [K. Gopal Reddy v. State of A.P., (1979) 1 SCC 355 : 1979 SCC (Cri) 305], this Court has observed that where the trial court allows itself to be beset with fanciful doubts, rejects creditworthy evidence for slender reasons and takes a view of the evidence which is but barely possible, it is the obvious duty of the High Court to interfere in the interest of justice, lest the administration of justice be brought to ridicule."

N. Vijayakumar v. State of T.N., [(2021) 3 SCC 687] as hereunder: - "20. Mainly it is contended by Shri Nagamuthu, learned Senior Counsel appearing for the appellant that the view taken by the trial court is a "possible view", having regard to the evidence on record. It is submitted that the trial court has recorded cogent and valid reasons in support of its findings for acquittal. Under Section 378 CrPC, no differentiation is made between an appeal against acquittal and the appeal against conviction. By considering the long line of earlier cases this Court in the judgment in Chandrappa v. State of Karnataka, (2007) 4 SCC 415 : (2007) 2 SCC (Cri) 325 has laid down the general principles regarding the powers of the appellate Court while dealing with an appeal against an order of acquittal. Para 42 of the judgment which is relevant reads as under: (SCC p. 432) "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:

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

(2) 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.

(3) 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.

(4) 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.

(5) 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."

21. Further in the judgment in Murugesan [Murugesan v. State, (2012) 10 SCC 383: (2013) 1 SCC (Cri) 69] relied on by the learned Senior Counsel for the appellant, this Court has considered the powers of the High Court in an appeal against acquittal recorded by the trial court. In the said judgment, it is categorically held by this Court that only in cases where conclusion recorded by the trial court is not a possible view, then only the High Court can interfere and reverse the acquittal to that of conviction. In the said judgment, distinction from that of "possible view" to "erroneous view" or "wrong view" is explained. In clear terms, this Court has held that if the view taken by the trial court is a "possible view", the High Court not to reverse the acquittal to that of the conviction.

xxx xxx xxx

23. Further, in Hakeem Khan v. State of M.P., (2017) 5 SCC 719 : (2017) 2 SCC (Cri) 653 this court has considered the powers of the appellate court for interference in cases where acquittal is recorded by the trial court. In the said judgment it is held that if the "possible view" of the trial court is not agreeable for the High Court, even then such "possible view" recorded by the trial court cannot be interdicted. It is further held that so long as the view of the trial court can be reasonably formed, regardless of whether the High Court agrees with the same or not, verdict of the trial court cannot be interdicted and the High Court cannot supplant over the view of the trial court. Para 9 of the judgment reads as under: (SCC pp. 722-23) "9. Having heard the learned counsel for the parties, we are of the view that the trial court's judgment is more than just a possible view for arriving at the conclusion of acquittal, and that it would not be safe to convict seventeen persons accused of the crime of murder i.e. under Section 302 read with Section 149 of the Penal Code. The most important reason of the trial court, as has been stated above, was that, given the time of 6.30 p.m. to 7.00 p.m. of a winter evening, it would be dark, and, therefore, identification of seventeen persons would be extremely difficult. This reason, coupled with the fact that the only independent witness turned hostile, and two other eyewitnesses who were independent were not examined, would certainly create a large hole in the prosecution story. Apart from this, the very fact that there were injuries on three of the accused party, two of them being deep injuries in the skull, would lead to the conclusion that nothing was premeditated and there was, in all probability, a scuffle that led to injuries on both sides. While the learned counsel for the respondent may be right in stating that the trial court went overboard in stating that the complainant party was the aggressor, but the trial court's ultimate conclusion leading to an acquittal is certainly a possible view on the facts of this case. This is coupled with the fact that the presence of the kingpin Sarpanch is itself doubtful in view of the fact that he attended the Court at some distance and arrived by bus after the incident took place."

24. By applying the abovesaid principles and the evidence on record in the case on hand, we are of the considered view that having regard to material contradictions which we have already noticed above and also as referred to in the trial court judgment, it can be said that acquittal is a "possible view". By applying the ratio as laid down by this Court in the judgments which are stated supra, even assuming another view is possible, same is no ground to interfere with the judgment of acquittal and to convict the appellant for the offence alleged. From the evidence, it is clear that when the Inspecting Officer and other witnesses who are examined on behalf of the prosecution, went to the office of the appellant-accused, the appellant was not there in the office and office was open and people were moving out and in from the office of the appellant. It is also clear from the evidence of PWs 3, 5 and 11 that the currency and cellphone were taken out from the drawer of the table by the appellant at their instance. There is also no reason, when the tainted notes and the cellphone were given to the appellant at 5.45 p.m. no recordings were made and the appellant was not tested by PW 11 till 7.00 p.m."

15. Bearing in mind the proposition of law so culled out by the Hon'ble Apex Court in the above noted decisions coupled with the limitations so envisaged while deciding the present appeal which emanates at the instance of an informant against the acquittal of the accused, now the present case in hand is to be analysed while giving the verdict as to whether the trial court was in error in acquitting accused or not.

16. To begin with the ocular testimony of the prosecution witness is to be first analysed.

17. The prosecution produced PW1 being Devendra Singh in witness box and as per the testimony of Devendra Singh, the marriage of his sister Shreemati (since deceased) was solemnised in the year 2000 with Tejveer and according to PW1 Tejveer and his parents along with the relatives who are accused herein used to demand dowry and also kept on metting deceased with harassment.

18. As per PW1, he on the fateful day i.e. 23/24.10.2010 was in his uncle Dharmpal place which is nearby to the in-laws house and his uncle heard the screaming of his sister, consequently when they approached the in-laws place then they were apprised that the deceased was pregnant and her pregnancy was of eight months and due to certain complications she was unwell and labour pain occurred which resulted into screaming and accused assured the informant and his (Phupha) uncles that they were proceeding to take her to Raya hospital and on their assurance informant along with uncle came back to house and when they on the next day went to the hospital whereas whereabouts of the sister were not found.

19. PW1 in this statement has further deposed that on 23/24.10.2010, he found that the husband of the deceased being Tejveer beating his sister with cuddle and when the informant and his uncle Dharmpal tried to save her then he pushed them and the Jeth of the sister of the informant while holding the hand of the deceased throwed her in the vehicle being four-wheeler.

20. PW2 one Dharmpal presented himself as PW2 and he in his examination in chief has deposed that the deceased Shreemati is the daughter of his brother-in-law and she got married 13 years back and adquate gifts were offered to the in-laws of the deceased. According to PW2 Shreemati the deceased used to complaint that she was administered beating on account of non-payment dowry commensurate to the demand so raised. In the deposition of the PW2, it has been further deposed that the house of the in-laws of the deceased is just 4/5 steps from his house and on 23/24.10.2010 PW1 had stayed with him and when they had heard screams of the deceased, they had proceeded to in-laws house. It was further deposed that the accused herein were beating the deceased and when they resisted then it was of no avail and they took away the deceased in a four-wheeler being Bolero.

21. PW3 Dr. Ved Prakash in his examination-in-chief has deposed that he is the owner of the Omvati Nursing Home Trans Jamuna, Mathura. According to him on 23.10.2010, the deceased came to his nursing home in connection with stomach ache and she was having high pulse rate and even the heartbeats were also high, she was suffering from high-blood pressure and fever also. According to PW3, he attended her and provided medication and also put her on sline and injected her and discharged on the same day. According to PW1 the stomach ache also disappeared.

22. PW4 Karan Singh also appeared in the witness box and in his examination-in-chief he deposed that he knew Tejveer, who happens to be the husband of the deceased, however, he is not knowing the deceased. He is also not conversant with the fact that there was any marital discord was between the deceased and the accused, who happens to be the husband and he is also not aware that the deceased died on 24.10.2010 in the village, however he had heard about the same. It has further been deposed that he is not aware about the pregnancy of the deceased and he is totally ignorant about the fact that Tejveer being accused opposite party no.2 had used his leg while putting it upon the deceased that too on stomach on account whereof the deceased died.

23. PW5 Munshi Lal Saraswat in his deposition stated that he is an organiser of the cremation place being Dhruva Ghat since 2005 and he was holding the said office on 24.10.2020 and according to him the cremation ceremony was not conducted on 24.10.2010 in the subject Ghat.

24. One Updesh Kumar PW6 also appeared in the witness box, according to him he is the head writer of the police station Mant on 29.10.2010, first information report in question was lodged.

25. As PW7 Anil Kumar Sharma appeared while deposing that he was SHO of police station Mant on 29.10.2010 and on the same day on the basis of the written complaint so lodged by PW1 Devendra Singh FIR under Section 304, 498A and 201 IPC was registered being Case Crime No.218 of 2010.

26. So far as the defence witness being DW1 the accused got Charan Singh examined. According to DW1 Charan Singh, the marriage of the deceased with the accused Tejveer was solemnised 17-18 years ago and he being the neighbour attended the marriage. According to him after marriage there was matrimonial discord between the deceased and her husband. however consequent to the settlement, they were living together happily. He also deposed that the deceased was pregnant, however on the fateful day i.e. 23/24.10.2010 suddenly complications occurred pursuant whereof the deceased started vomiting and witnessing stomach ache and thereafter consequent to the screaming, he along with the other neighbours inclusive of ladies went in the house and then they were apprised that the deceased was being taken to hospital and the deceased was being put up in the four-wheeler and he in his motorcycle went to the Nursing Home where medication was done and it revealed that the baby had died in the womb on account whereof poison was being scattered in the body and thereafter it was advised that the deceased be taken to hospital at Agra and then the deceased was taken to Agra hospital and in the meantime, he came back to his village. According to DW1 subsequently he got the information that the deceased had died. It was further deposed that from the maternal side of the deceased about 3-4 persons came and the villagers, who was staying in the village of the in-laws had gone to the cremation ground at Mathura and attended cremation ceremony.

27. Records reveal that the first information report was lodged on 29.10.2010 at about 12.30 hours in police station Mant, District Mathura. It is not disputed that the alleged incident which is being sought to be made a ground for commission of the crime occasioned on 23/24.10.2020 at about 2.30 hours in the morning. As per the records the place of the occurrence about 7 kms. towards east from the police station Mant, District Mathura.

28. Now a question arises as to why the first information report in question has been lodged after a period of 5 days, when admittedly the first informant being the PW1 Devendra Singh was already present on 23/24.10.2010 at a place where the deceased was said to have been tortured and administered beating with the aid of leg so used by the accused opposite party no.2 being Tejveer (husband).

29. An explanation has been offered by the PW1 Devendra Singh being the first informant that on 24.10.2010, he came to know from the in-laws place that his sister has died and accordingly he submitted a written report on 24.10.2010 before the concerned police station but the same was not registered and so he got the first information report registered by virtue of a written report at second instance on 29.10.2010. The said deposition finds place at page-7 of PW1 Devendra Singh.

30. A perusal of the first information report in question further reveals that no such fact has been recited in the first information report. Even otherwise as per the statement of PW1 Devendra Singh, he could not give the name description and details of person, who told him that his sister died on 24.10.2010.

31. Remarkably another fact also need to be noticed that PW1 in his statement has come up with a stand that on 23/24.10.2010 when after hearing the hue and cry of his sister when he along with his uncle reached there then they witnessed the fact that Tejveer being the accused husband was beating his sister and when PW1 and his uncle Dharmpal intervened then they were kept aside. Further the said fact also does not find place in the first information report. Meaning thereby that the first informant had full knowledge regarding the incident which occurred on 23/24.10.2010 then to first information report has been lodged after enormous delay. Even otherwise there is no plausible explanation offered by the informant in lodging the first information report after such a long unexpected delay.

32. Hon'ble Apex Court on the question of delay in lodging the FIR and its impact upon the prosecution theory has observed in the case of (1973) 3 SCC 114 Apren Joseph Alias Current Kunjukunju and others Vs. The State of Kerala wherein para 11 following was mandated:

11. Now first information report is a report relating to the commission of an offence given to the police and recorded by it under Section 154, Cr. P. C. As observed by the Privy Council in K. E. v. Khwaja, the receipt and recording of information report by the police is not a condition precedent to the setting in motion of a criminal investigation. Nor does the statute provide that such information report can only be made by an eye witness. First information report under Section 154 is not even considered a substantive piece of evidence. It can only be used to corroborate or contradict the informant's evidence in court. But this information when recorded is the basis of the case set up by the informant. It is very useful if recorded before there is time and opportunity to embellish or before the informant's memory fades. Undue unreasonable delay in lodging the F. I. R., therefore, inevitably gives rise to suspicion which puts the court on guard to look for the possible motive and the explanation for the delay and consider its effect on the trustworthiness or otherwise of the prosecution version. In our opinion, no duration of time in the abstract can be fixed as reasonable for giving information of a crime to the police, the question of reasonable time being a matter for determination by the court in each case. Mere delay in lodging the first information report with the police is, therefore, not necessarily, as a matter of law, fatal to the prosecution. The effect of delay in doing so in the light of the plausibility of the explanation forthcoming for such delay accordingly must fall for consideration on all the facts and circumstances of a given case.

33. In the case of Tara Singh and others Vs. State of Punjab 1991 Supp (1) SCC 536, the Hon'ble Apex Court in paragraph 4 has observed as under:-

4. It is well settled that the delay in giving the FIR by itself cannot be a ground to doubt the prosecution case. Knowing the Indian conditions as they are we cannot expect these villagers to rush to the police station immediately after the occurrence. Human nature as it is, the kith and kin who have witnessed the occurrence cannot be expected to act mechanically with all the promptitude in giving the report to the police. At times being grief-stricken because of the calamity it may not immediately occur to them that they should give a report. After all it is but natural in these circumstances for them to take some time to go to the police station for giving the report. Of course the Supreme Court as well as the High Courts have pointed out that in cases arising out of acute factions there is a tendency to implicate persons belonging to the opposite faction falsely. In order to avert the danger of convicting such innocent persons the courts are cautioned to scrutinise the evidence of such interested witnesses with greater care and caution and separate grain from the chaff after subjecting the evidence to a closer scrutiny and in doing so the contents of the FIR also will have to be scrutinised carefully. However, unless there are indications of fabrication, the court cannot reject the prosecution version as given in the FIR and later substantiated by the evidence merely on the ground of delay. These are all matters for appreciation and much depends on the facts and circumstances of each case.

34. Yet, in the case of P. Rajagopal and others Vs. State of Tamil Nadu (2019) 5 SCC 403, the Hon'ble Apex Court in paragraph 12 has held as under:-

12. Normally, the Court may reject the case of the prosecution in case of inordinate delay in lodging the first information report because of the possibility of concoction of evidence by the prosecution. However, if the delay is satisfactorily explained, the Court will decide the matter on merits without giving much importance to such delay. The Court is duty-bound to determine whether the explanation afforded is plausible enough given the facts and circumstances of the case. The delay may be condoned if the complainant appears to be reliable and without any motive for implicating the accused falsely.

35. Applying the judgments with relation to the impact of delay in lodging of the first information report, the prosecution case cannot be thrown out or disbelieved, however certain other factors so as to put a nail upon the coffin for convicting needs to be further analysed.

36. In order to link the accused with respect to the commission of the crime, the allegations so contained in the prosecution theory is to be first noticed. As per the FIR allegation has been levelled with the accused herein being the in-laws of the deceased had been demanding theory and when the same was not being fulfilled as per the expectation of the in-laws then harassment coupled with beating was also administered. It has also come on record that proceedings under Section 498A, 323 IPC as well as under Section 125 Cr.P.C. was also lodged. PW1 being Devendra Singh in his statement had though deposed that even after settlement between the deceased and her husband and their relatives, the position did not change at all and she was met with harassment and after approximately 8 years from the date of the marriage, dowry was also demanded. PW1 Devendra Singh has further deposed that the deceased was 8th passed and she was good in writing Hindi. However, there was no letter/complaint written by the deceased regarding harassment, however she had told oraly.

37. Similarly, PW2 Dharmpal, who happens to be the uncle of the informant has reiterated the statement of the PW1 in relation to the demand of dowry. It has further come on record that the PW2 in his statement has come up with a stand that the accused are possessing 10-11 Bigha of agriculture land tractor etc. However, there is nothing on record to substantiate the fact that after settlement so arrived between the deceased and her in-laws family, there was any beating or harassment being meted to her. Baring oral allegations there is nothing on record to substantiate the same.

38. Learned Trial Court has analysed the said issue in detail and has recorded a categorical finding that the prosecution had miserably failed to prove the fact that the deceased died due to non-fulfillment of the expectations of the in-laws relating to demand of dowry.

39. The issue can also be seen from another point of angle that first of all, first information report has been lodged after five days despite the fact that the first informant was himself present on 23/24.10.2010 and according to him he had gone into in-laws place. Further another aspect which needs to be considered while delving into the issue is with respect to the fact that in the first information report, there was no indication that the husband of the deceased Tejveer was beating the deceased though subsequently in the statements of the PW1 and 2, it has been stated that the deceased was subjected to beating by her husband and in-laws. In order to attract the provisions contained under Section 498A read with Section 302, 304 and 201 IPC, the prosecution has to prove that the death occurred on account of demand of dowry.

40. The present case can viewed from the fact that though proceedings under Section 498A, 323 IPC and Section 125 Cr.P.C. was also lodged but the deceased was living with amicably in-laws place even after settlement. Even PW2 in his statement at page 4 had stated that he had informed the police officials regarding the administering of beating by tin-laws upon the deceased but the same was not written. Even PW2 in his statement at page 4 has deposed that he is not aware as to why in the first information report the fact regarding administrating of beating by the accused was not written.

41. It is quiet paradoxical and amazing that in case the prosecution story so build up by them with respect to administrating of beating of that too of a pregnant woman was being witnessed by the PW1 & PW2 then why the same did not find place in the first information report and further the fact as to why after five days the FIR was not lodged. It is not case wherein PW1 is a stranger rather he is the real brother of the deceased. Moreso the deceased happens to be the daughter of the brother-in-law of PW2 and stays in a place which is very close to the in-laws of the deceased then to he did not take any immediate steps. The said fact itself shows that the prosecution story has been engineered just in order to implicate the accused.

42. PW1 Devendra Singh has further deposed that he is not aware whether the cremation ceremony of the deceased was done at a Dhruv Ghat in Mathura and about the fact that receipts have been submitted before the trial court or not. However, from the documents, he has come to know that the deceased cremation ceremony was conducted in Mathura and further it is falls to say that in the cremation ceremony any of the members of his family were present.

43. PW5 Munshi Lal Saraswat, who happens to be the organiser of Dhruv Ghat at Mathura, came in the witness box and according to him, no cremation ceremony was conducted therein. In his cross-examination, he has come up with a stand that he is posted as an organiser in the Dhruv Ghat cremation place since 2005 and on 24.10.2010, he was holding the office of the organiser and on that day no cremation ceremony of Shreemati was done. The said facts itself shows that the prosecution proceeds on weak evidence and further there is nothing on record to link the accused while commission of the crime.

44. More so, DW1 Charan Singh in his cross-examination has supported the case of the defence and has further deposed that the house of the accused is in between 8-10 house from his house and he is not aware about the fact that Tejveer and the deceased had certain marital discard which emerged in a form of fighting. According to him, deceased was witnessing certain complications regarding her pregnancy, he did not enter the house on the fateful day, however certain ladies of the village, they entered the house and he was informed that the situation of the deceased was critical and thereafter she was taken to the hospital in a four-wheeler. However, he is not aware about the details of the car and his number. According to him the four-wheeler was of white colour and he had proceeded in a motorcycle, the motorcycle belonged to one Pratap and thereafter, he came back and subsequently, he was informed that the deceased had died and in the cremation ceremony, maternal side of the deceased were present.

45. Meticulously, analysing the prosecution case in the backdrop of the testimony of the prosecution witnesses and the documents so produced before the trial court this Court finds that the prosecution story proceeds on weak evidence and the same in no manner whatsoever completely links the accused with respect to commission of crime. Notably, not only the first information report has been lodged after 5 days and the occurrence took place on 23/24.10.2010, FIR lodged on 29.10.2010, absence of plausible explanation in lodging of the FIR coupled with the fact that even the prosecution has failed to prove that the death of the deceased occurred on account of dowry attracting the provisions contained under Sections 498A IPC and further the fact that improvement has been sought to be made as certain allegations have been sought to be inserted, which did not find place in the first information report that too in a such situation wherein the first informant was present at the time of the alleged occurrence and the fact that he is the real brother of the deceased.

46. Nonetheless, this Court finds that the view taken by the learned Trial Court while acquitting the accused does not warrant any interference as no other view is possible even if it is possible also, this Court will not grant indulgence while reversing the judgment of the acquittal while convicting them in absence of wreak evidence so sought to be propagated by the prosecution.

47. In view of above, the Criminal Appeal is dismissed.

48. The records be sent back to the court-below.

(Vikas Budhwar, J.)      (Vivek Kumar Birla,J.)
 

 
Order Date :- 12.7.2022
 
piyush