State Of U.P. vs Sameer
2022 Latest Caselaw 14538 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 42
 

 
Case :- GOVERNMENT APPEAL No. - 155 of 2021
 

 
Appellant :- State of U.P.
 
Respondent :- Sameer
 
Counsel for Appellant :- G.A.
 

 
Hon'ble Vivek Kumar Birla,J.

Hon'ble Rahul Chaturvedi,J.

Re: Criminal Misc. Application (Leave to Appeal)

1. Heard Shri Yogeshwar Rai, learned State Law Officer appearing for the appellant-State of UP and perused the record.

2. This government appeal has been preferred against the judgement and order dated 10.01.2010 passed by the Additional Sessions Judge, Court No.3, Meerut in Session Trial No.754 of 2016 (State of U.P. vs. Sameer), arising out of Case Crime No.60 of 2016, under Section 498A, 302 IPC and Section 3/4 of D.P. Act, P.S. Kotwali, District Meerut, whereby the accused has been acquitted from the charges under aforesaid sections of IPC. but has been convicted u/s 306 I.P.C.

3. Prosecution story, in nutshell is that the a written report was given by the informant Mujammil s/o Abdul Qadir alleging therein that his sister Firdaus was married to Sameer s/o Nijamuddin about 14 years back according to Muslim Rites and Rituals. Further allegation is that soon after the marriage, there was a demand of dowry by the in-laws in the shape of a motorcycle and two lacks rupees cash. It was also alleged that there was no issue of his sister Firdaus. There was constant harassment and cruel treatment meted out to his sister by her in-laws for not fulfilling the demand of dowry. On 14.4.2016 at 05.00 P.M. sister of the informant came to his home at Shahpeer Gate, Meerut and told that her in-laws are ill-treating her and they want to get her husband's marriage with someone else. After pacifying his sister, the informant sent her back to her matrimonial home and on 15.4.2016 around 01.00 hours the cousins of the informant, namely Uman and Aman heard the screams of Firdaus. They tried to enter into the house but the house was locked from inside, thereafter they informed about the incident to their family members. It was alleged that Firdaus was murdered by Sameer s/o Nijamuddin, Nijamuddin s/o Wahab, Shakir, Suheb s/o Nijamuddin and Smt. Ameer Jahan w/o Nijamuddin due to non fulfillment of their demand of dowry. On these facts, an F.I.R. was registered as Case Crime No.60 of 2016, u/s 498A, 302 I.P.C. and Section 3/4 of D.P. Act at Police Station-Kotwali, District Meerut.

4. In support of prosecution case, PW-1 Umar, PW-2 Uman, PW-3 Aman, P.W.-4 Rahisuddin, P.W.-5 Dr. Pradeep Kumar, P.W.-6 S.I. Mahesh Chand, P.W.-7 Ajay Kumar Agrawal, P.W.-8 Ravindra Chand and PW-9 Smt. Ravita Gupta were produced and examined before the Court below. Prosecution has also produced certain documentary evidence to establish its case and the same were also exhibited by the court below, which are- Report of complainant as Exh.Ka-1, Panchayatnama as Exh.Ka-2, Postmortem report as Exh.Ka-3, Namuna Mohar as Exh. Ka-4, Photonash as Exh. Ka-5, Report of Reserve Inspector as Exh. Ka-6, Report of Police Station as Exh.Ka-7 and Exh.Ka-8, charge sheet as Exh. Ka-9, Site plan as Exh. Ka-10, Recovery memo of Chunni as Exh. Ka-11, Chik of First Information Report as Exh. Ka-12 and carbon copy as Exh. Ka-13.

5. The judgement of acquittal was passed by the Court below on the ground that there was no ligature mark on the back side of the neck and the Dupatta was found hanging on the ceiling fan and the accused was not at his home at the time of incident and had come home after receiving information. The body of the deceased was taken out after breaking open the door which was locked from inside, therefore, it was not proved that the deceased was strangulated, however, it was found that she has committed suicide. In view of some ante-mortem injuries on the face it was found by the court below that the deceased was beaten by the accused, and therefore, he was convicted u/s 306 I.P.C.

6. Challenging the impugned judgment, learned AGA submits that there was cogent evidence to convict the accused person herein. He next submits that it is a case where judgement is perverse in nature and this is a case where there were ante-mortem injuries on the face of the deceased and the cause of death also reflects that she was strangulated. Therefore, submission is that the judgement and order of acquittal passed by the trial Court requires serious consideration and reversal and the accused persons herein are liable to be convicted.

7. We have considered the submissions and have perused the record.

8. Before proceeding further, it would be appropriate to take note of law on the appeal against acquittal.

9. In the case of Bannareddy and others vs. State of Karnataka and others, (2018) 5 SCC 790, in paragraph 10, the Hon'ble Apex Court has considered the power and jurisdiction of the High Court while interfering in an appeal against acquittal and in paragraph 26 it has been held that "the High Court should not have reappreciated the evidence in its entirety, especially when there existed no grave infirmity in the findings of the trial Court. There exists no justification behind setting aside the order of acquittal passed by the trial Court, especially when the prosecution case suffers from several contradictions and infirmities."

10. In Jayamma vs. State of Karnataka, 2021 (6) SCC 213, the Hon'ble Supreme Court has been pleased to explain the limitations of exercise of power of scrutiny by the High Court in an appeal against an order of acquittal passed by a Trial Court.

11. In a recent judgement of this Court in Virendra Singh vs. State of UP and others, 2022 (3) ADJ 354 DB, the law on the issue involved has been considered.

12. Similar view has been reiterated by Hon'ble Apex Court in Rajesh Prasad vs. State of Bihar and another, (2022) 3 SCC 471.

13. On perusal of record, we find that the deceased was married about 15 years back and she was issueless. As per postmortem report of the deceased, there was no ligature mark on the backside of her neck and two Dupattas were found hanging on the ceiling fan. We further find that the accused was not present at his home when the incident was reported and as per record available he has reached on spot after receiving the information and the body was taken out after breaking open the door which was locked from inside. In such view of the matter there is double presumption of innocence at this stage in favour of accused in so far as the offences under which he has been acquitted are concerned. He has also been convicted u/s 306 I.P.C. We find that a possible view of the matter has been taken by the court below and there is no good ground to reverse the findings of the court below. The law in this regard is clear that the suspicion, howsoever strong it may be, cannot be a ground for reversal of the judgment of acquittal. On appreciation of entire evidence on record, the findings of the court below cannot be substituted by this Court by taking a different view as per the law discussed above.

14. Accordingly, we find that it is not a case worth granting leave to appeal. The application for granting leave to appeal is rejected.

Re: Government Appeal

1. Consequently, since the Criminal Misc. Application (Leave to Appeal) is rejected by order of date, the present government appeal is also dismissed.

2. However, from the perusal of office report we find that the present appeal was reported beyond time by 293 days and stamp reporter has reported that no criminal appeal was got reported in aforesaid session trial. It is, therefore, prima facie clear that up to that date, no criminal appeal had been filed by the accused challenging the conviction u/s 306 IPC. We are not aware of the current status in this regard, therefore, in case any such criminal appeal has been filed in the present session trial, the rejection of this application for leave to appeal and consequently dismissal of this government appeal would not affect the merits of the criminal appeal, if any, filed by the accused.

Order Date :- 20.10.2022

M. Kumar