Allahabad High Court
Shankar Shah vs State Of U.P. And Another on 27 July, 2022
Bench: Vivek Kumar Birla, Vikas Budhwar
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 42
Case :- CRIMINAL MISC. APPLICATION U/S 372 CR.P.C (LEAVE TO APPEAL) No. - 210 of 2018
Applicant :- Shankar Shah
Opposite Party :- State of U.P. and Another
Counsel for Applicant :- Chandra Prakash Misra,Sushil Kumar Mishra
Counsel for Opposite Party :- G.A.
Hon'ble Vivek Kumar Birla,J.
Hon'ble Vikas Budhwar,J.
Order on Application for Leave to Appeal
Heard Sri Shushil Kumar Mishra, learned counsel for the applicant, Ms. Nand Prabha Shukla, learned A.G.A. for the State and perused the record.
The present appeal has been instituted against the judgment and order dated 19.02.2018 passed by Additional Session Judge/F.T.C.- IInd, Kushinagar at Padrauna in S.T. No. 515 of 2007, CNR No. UPKUOI-000066-2007 (State Vs. Khajanchi), u/s 304/34, 323 IPC, P.S. Vishnupura, District Kushinagar, by which accused-respondent no.2, Khajanchi S/o Harihar Prasad has been acquitted.
According to prosecution case, the maternal grand son of the informant Shankar Shah was playing nearby his residence when Sanjay and Khajanchi started beating his grand son and when his mother Meena W/o Munna Shah came out to save him and at the same time her father-in-law Shankar Shah and, Banshi Shah and Nageena Devi also came to pacify them. Meena was having 7 months pregnancy and probably she suffered injury in her stomach and was having continuous pain, therefore, her father-in-law went out to fetch the doctor, in the meantime she died at about 07:00 p.m.
In order to prove the charges, the prosecution produces the following witnesses namely, Shankar Shah- P.W. 1, Munna Gupta- P.W. 2, Sangeeta- P.W. 3, Rajvanshi @ Banshi, witness of Punchnama- P.W. 4, Dr. Satish Kumar Singh- P.W. 5, I.O. Munni Lal Gautam- P.W.- 6.
Prosecution also produced the following documents to bring home the charges:- (i) Complaint Ex. Ka-1, (ii) Panchanam Ex. Ka-2, (iii) Postmortem Report Ex. Ka-3, (iv) Site Plan Ex. Ka-4, (v) Photo Nash Ex. Ka-5, (vi) Form No. 13 Ex. Ka-6, (vii) Specimen Stamp Ex. Ka-7, (viii) F.I.R. Ex. Ka-8, (ix) Copy of F.I.R. Ex. Ka-9, (x) Charge Sheet Ex. Ka-10 (xi) VISCERA Report of F.S.L. Ex. Ka-11.
The impugned judgment of acquittal was passed on the ground that consistent stand has been taken by the prosecution including the FIR is that the deceased Meena Devi was brutally beaten by the accused herein and she died because of the injuries as she was carrying 7 months pregnancy, however, from the postmortem report it was found that she had not suffered from any external injury and her Viscera report was called for. As per Viscera report report Ex.Ka-11, the body parts of the deceased contained poison namely, stomach and intestine, piece of intestine, piece of liver, one kidney and spleen. Further, as per the Panchayatnama Ex. A-2, no external injuries were detected on the body of the deceased. Under these circumstances, looking into the inconsistency in the nature of injuries which became fetal as reflected in the FIR viz a viz the death of the deceased on account of poison so proved by Viscera, the learned trial court passed the judgment of acquittal.
Challenging the same, the submission of learned counsel for the appellant is that the trial court must have taken into account the cause of death as she was poisoned as P.W. 3, Sangeeta in her categorical statement has stated that the deceased Meena Devi was beaten by the accused persons and when the deceased came back to her residence the accused Khajanchi came and administered some medicine to her and said to the deceased that it will give relief and subsequently, from the postmortem report it was found that she was poisoned. On this strength it is submitted that the trial court has not considered the material evidence and therefore, the judgment is perverse in nature.
We have considered the rival submissions of parties and perused the record.
From the record we find that the incident had taken place on 08.08.2006 at about 03:00 pm and the FIR was lodged on 09.08.2006 at 09:15 pm that was about more than 30 hours and even if she had died, still in the FIR there is no allegation that any tablet was administered by the accused persons to the deceased Meena. Further the consistent stand taken by the prosecution case in the form P.W. 2, P.W. 3 and P.W. 4 is that the deceased Meena was beaten severely and because of such injury she died who was carrying 7 months pregnancy. It is pertinent to note that the statement of Sangeeta, P.W. 3 was recorded on 18.08.2015 whereas the Viscera Report is dated 25.05.2007 and the charge sheet was submitted on 21.03.2015. It is therefore clear that there was improvement in the statement of P.W. 3 and except this statement of P.W. 3 that she was administered some kind of tablet by Khajanchi, there is no other evidence on record. We further find that there is no reason why the accused Khajanchi who was specifically named with the allegation that he had brutally beaten the deceased and thereafter, he was permitted to come inside the house of the informant and permitted to administered medicine or any kind of material to deceased Meena Devi.
In this back ground we find that the learned trial court has taken a possible view of the matter and we do not find any good ground to take a different view of the matter. No interference is warranted in the judgment of the trial court.
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, Guru Dutt Pathak vs The State Of Uttar Pradesh (2021), 6 SCC 116.
In view of the above, the appeal is devoid of merit and is accordingly, dismissed at the stage of admission.
Record of the present case be sent back to the concerned court below.
Order Date :- 27.7.2022
Nisha
