Smt. Alka vs State Of U.P.
2022 Latest Caselaw 13609 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R
 
Court No. - 44
 

 
Case :- CRIMINAL APPEAL No. - 2275 of 2017
 
Appellant :- Smt. Alka
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Nirvikar Gupta,Akhilesh Srivastava,Bhanu Pratap Pal,Noor Mohammad,Saksham Srivastava
 
Counsel for Respondent :- G.A.
 
&
 
Case :- GOVERNMENT APPEAL No. - 230 of 2021
 
Appellant :- State of U.P.
 
Respondent :- Sanjeev Kumar And 2 Ors.
 
Counsel for Appellant :- G.A.
 
Counsel for Respondent :- Kamlesh Kumar Dwivedi,Noor Mohammad
 

 
Hon'ble Dr. Kaushal Jayendra Thaker,J.

Hon'ble Nalin Kumar Srivastava,J.

(Per Justice Nalin Kumar Srivastava, J.)

1. Both these appeals arise out of common impugned order dated 28.3.2017 passed by the Additional Sessions Judge/Fast Track Court No.1, Aligarh in Sessions Trial No.67 of 2011 whereby the learned Additional Sessions Judge has convicted the accused-appellant, Alka, for commission of offence under Section 302 of Indian Penal Code, 1860 (for short 'IPC') and sentenced her to undergo imprisonment for life with fine of Rs.10,000/-.

2. Criminal Appeal No. 2275 of 2017 has been preferred by accused-appellant, Alka against her conviction whereas the Government Appeal No. 230 of 2021 has been preferred by the State against the acquittal of respondents, Sanjiv Kumar, Rajiv Kumar & Rajendra Prasad under Section 498A, 304B, 302/34 of IPC and Section 3/4 of Dowry Prohibition Act, 1961 (for short 'Act, 1961').

3. Heard Sri Noor Mohammad, learned counsel for accused-appellant, Alka and acquitted respondents in Government Appeal. Heard Sri Vikas Goswami, learned A.G.A. for respondent-State in Criminal Appeal and Sri Patanjali Mishra, learned A.G.A. in Government Appeal.

4. Brief facts of the case are that the informant Gopal Varshney, uncle of the deceased made a complaint before the police authority stating therein that marriage of his niece was solemnized with Sanjeev s/o Rajendra Prasad one and half years ago and the informant had given money and households as dowry as per his capacity. It was further alleged that the in-laws of the deceased were persistently demanding amount of Rs.20,000/- and one motorcycle as additional dowry. Many time settlements were taken place but the things were not pacified and on the fateful day of 13.4.2010 at 11.00 p.m., the in-laws of the deceased namely Sanjeev (husband), Manoj (brother-in-law/Jeth), Rajeev (brother-in-law/Devar), Anita (mother-in-law), Alka (Sister-in-law/Jethani) and Rajendra (father-in-law) poured kerosene on Julie and set her ablaze. It was further alleged by the informant that on being informed by his nephew, he reached at Medical College, Aligarh on 14.4.2010 where he found his niece, Julie unconscious and she was being treated there.

5. On the basis of above, complaint, Case Crime No.221 of 2010 under Sections 498A, 307 of IPC and Section 3/4 of the Act, 1961 was registered against the above accused.

6. On investigation being put into motion, the investigating officer recorded the statements of all the witnesses and submitted the charge-sheet to the learned Magistrate.

7. The learned Magistrate summoned the accused and committed the case to the Sessions Court as the offences alleged to have been committed were triable by the Sessions Court as prima facie offences were alleged to be falling under Sections 498A, 304 B of the Indian Penal Code and Section 3/4 of Dowry Prohibition Act. Section 304B of IPC was included as the deceased died.

8. On being summoned, the accused-persons pleaded not guilty and wanted to be tried.

9. On 1.9.2011, the charges were framed under Sections 498A, 304B & 302 read with Section 34 of IPC.

10. The Trial started and the prosecution examined 11 witnesses who are as follows:

Gopal Varshney

PW1

Radha Raman

PW2

Kailash Chandra

PW3

K.K. Gupta

PW4

Ramendra Singh

PW5

K.L. Verma

PW6

Mohd. Gaffar

PW7

Atul Kumar Gautam

PW8

Sunil Kumar Singh

PW9

Dr. P. Kumar

PW10

Dr. Ahastan Ahmad

PW11

11. In support of ocular version following documents were filed and proved:

F.I.R. & G.D.

Ex.Ka.4 & Ex. Ka.5

Written Report

Ex.Ka.1

Dying Declaration

Ex. Ka.10

Postmortem Report

Ex.Ka.3 &19

Papers relating to Postmortem

Ex.Ka.6, Ka.7, Ka.8 & Ka.9

Panchayatnama

Ex.Ka.2

Charge-sheet

Ex. Ka.18

Site Plan

Ex.Ka.11 & 12

12. At the end of the trial and after recording the statements of the accused under section 313 of Cr.P.C., and hearing arguments on behalf of prosecution and the defence, the learned Sessions Judge convicted the accused-appellant, Alka and acquitted the other accused as mentioned above.

13. It is submitted by learned counsel for the appellant that the incident occurred at the spur of moment as is clear from the dying declaration. The accused had not premeditated to do away with the deceased. Learned counsel for the appellant has vehemently submitted that dying declaration is not worth believing and it is an admitted position of fact that deceased died due to septicemia.

14. It is further submitted that conviction under Section 302 IPC is not made out as no overt act as per Section 300 IPC is made out. In alternative, it is submitted that at the most, the death can be homicidal death not amounting to murder and punishable under Section 304 II or Section 304 I of I.P.C. If the Court decides that the accused is guilty, then the accused may be granted fixed term punishment of incarceration.

15. Learned counsel for the State has submitted that though it is septicemic death, the dying declaration and evidence of other prosecution witnesses will not permit this Court to show any leniency in the matter. It is further submitted by learned A.G.A. that ingredients of Section 300 of IPC are rightly held to be made out by the learned Sessions Judge who has applied the law to the facts in case.

16. While considering evidence of P.W.1, who is the uncle of the deceased, we find that he has proved the complaint lodged by him which has been exhibited and has opined that in his ocular version that the marriage took place before 1 & 1/2 years. About Rs.2,50,000/- was spent but her in-laws were not happy with the same. The husband and other family members started demanding additional dowry. The family members of the deceased tried to request the in-laws not to demand more dowry but the in-laws were not accepting the request and on 13.4.2010 the deceased was set ablaze. On 14.4.2010 when they went to Medical College Hospital they found her unconscious. The First Information Report was lodged after three days. P.W. 2 & 3 who are family members have also corroborated the evidence of P.W.1. As far as independent witness namely P.W.4, Doctor K.K. Gupta is concerned, he had performed postmortem of the deceased. P.W.5 & 8 are police officials and P.W.6, 7 & 9 are government officials who had jotted down the dying declaration. P.W.7, Mohd. Gaffar, Retd. District Magistrate has deposed before the Trial Court that he had recorded the dying declaration of the deceased. He has deposed that while giving her statement she was conscious and she told that uncle of her husband had admitted her in the hospital and that her husband had saved her. P.W.7 has further deposed that nothing else was stated by her in her dying declaration.

17. The learned Sessions Judge has not accepted the statement recorded by I.O. ten days after the recording of the dying declaration of the deceased by the Magistrate. The learned Sessions Judge has taken recourse of Lella Srinivasa Rao Versus State of Andhra Pradesh, AIR 2004 SC 1720 and on the basis of this judgment, he has opined that the statement recorded by the I.O. after recording of the dying declaration by the Magistrate was not reliable and has found that the dying declaration recorded by the Magistrate cannot be found fault with.

18. In the light of the decision in Govindappa and others Versus State of Karnataka, (2010) 6 SCC 533, there is no reason for us not to accept the dying declaration recorded by the Magistrate and its evidentiary value under Section 32 of Evidence Act, 1872.

19. Principle for accepting dying declaration will permit us to concur with the finding of the learned Sessions Judge that dying declaration could have been acted upon as there is no material contradictions in the dying declaration. The dying declaration when taken in its totality goes to show that her sister-in-law had poured kerosene on the deceased and set her ablaze, her husband has saved her and she died after several days out of septicemic death and, therefore, we are convinced that it is homicidal death but, it would be seen whether it is homicidal death punishable under Section 302 or Section 304 Part I or Part II of IPC?

20. It would be relevant to refer to Section 299 of the Indian Penal Code, which read as under:

"299. Culpable homicide: Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide."

21. The academic distinction between ''murder' and ''culpable homicide not amounting to murder' has always vexed the Courts. The confusion is caused, if Courts loose sight of the true scope and meaning of the terms used by the legislature in these sections, and allow themselves to be drawn into minute abstractions. The safest way of approach to the interpretation and application of these provisions seems to be is to keep in focus the keywords used in the various clauses of Section 299 and 300 of I.P.Code. The following comparative table will be helpful in appreciating the points of distinction between the two offences.

Section 299

Section 300

A person commits culpable homicide if the act by which the death is caused is done-

Subject to certain exceptions culpable homicide is murder if the act by which the death is caused is done.

INTENTION

(a) with the intention of causing death; or

(1) with the intention of causing death; or

(b) with the intention of causing such bodily injury as is likely to

cause death; or

(2) with the intention of causing such bodily injury as the offender knows to be likely to

cause the death of the person to whom the harm is caused;

KNOWLEDGE

KNOWLEDGE

(c) with the knowledge that the act is likely to cause death.

(4) with the knowledge that the act is so immediately dangerous

that it must in all probability cause death or such bodily injury as is likely to cause death, and without any excuse for incurring the risk of causing death or such injury as is mentioned above.

22. We can safely rely upon the decision of the Gujarat High court in Criminal Appeal No.83 of 2008 (Gautam Manubhai Makwana Vs. State of Gujarat) decided on 11.9.2013 wherein the Court held as under:

"12. In fact, in the case of Krishan vs. State of Haryana reported in (2013) 3 SCC 280, the Apex Court has held that it is not an absolute principle of law that a dying declaration cannot form the sole basis of conviction of an accused. Where the dying declaration is true and correct, the attendant circumstances show it to be reliable and it has been recorded in accordance with law, the deceased made the dying declaration of her own accord and upon due certification by the doctor with regard to the state of mind and body, then it may not be necessary for the court to look for corroboration. In such cases, the dying declaration alone can form the basis for the conviction of the accused. But where the dying declaration itself is attended by suspicious circumstances, has not been recorded in accordance with law and settled procedures and practices, then, it may be necessary for the court to look for corroboration of the same.

13. However, the complaint given by the deceased and the dying declaration recorded by the Executive Magistrate and the history before the doctor is consistent and seems to be trustworthy. The same is also duly corroborated with the evidence of witnesses and the medical reports as well as panchnama and it is clear that the deceased died a homicidal death due to the act of the appellants in pouring kerosene and setting him ablaze. We do find that the dying declaration is trust worthy.

14. However, we have also not lost sight of the fact that the deceased had died after a month of treatment. From the medical reports, it is clear that the deceased suffered from Septicemia which happened due to extensive burns.

15. In the case of the B.N. Kavatakar and another (supra), the Apex Court in a similar case of septicemia where the deceased therein had died in the hospital after five days of the occurrence of the incident in question, converted the conviction under section 302 to under section 326 and modified the sentence accordingly.

15.1 Similarly, in the case of Maniben (supra), the Apex Court has observed as under:

"18. The deceased was admitted in the hospital with about 60% burn injuries and during the course of treatment developed septicemia, which was the main cause of death of the deceased. It is, therefore, established that during the aforesaid period of 8 days the injuries aggravated and worsened to the extent that it led to ripening of the injuries and the deceased died due to poisonous effect of the injuries.

19. It is established from the dying declaration of the deceased that she was living separately from her mother-in-law, the appellant herein, for many years and that on the day in question she had a quarrel with the appellant at her house. It is also clear from the evidence on record that immediately after the quarrel she along with her daughter came to fetch water and when she was returning, the appellant came and threw a burning tonsil on the clothes of the deceased. Since the deceased was wearing a terylene cloth at that relevant point of time, it aggravated the fire which caused the burn injuries.

20. There is also evidence on record to prove and establish that the action of the appellant to throw the burning tonsil was preceded by a quarrel between the deceased and the appellant. From the aforesaid evidence on record it cannot be said that the appellant had the intention that such action on her part would cause the death or such bodily injury to the deceased, which was sufficient in the ordinary course of nature to cause the death of the deceased. Therefore, in our considered opinion, the case cannot be said to be covered under clause (4) of Section 300 of IPC. We are, however, of the considered opinion that the case of the appellant is covered under Section 304 Part II of IPC."

16. In the present case, we have come to the irresistible conclusion that the role of the appellants is clear from the dying declaration and other records. However, the point which has also weighed with this court are that the deceased had survived for around 30 days in the hospital and that his condition worsened after around 5 days and ultimately died of septicemia. In fact he had sustained about 35% burns. In that view of the matter, we are of the opinion that the conviction of the appellants under section 302 of Indian Penal Code is required to be converted to that under section 304(I) of Indian Penal Code and in view of the same appeal is partly allowed.

17. The conviction of the appellants - original accused under Section 302 of Indian Penal Code vide judgment and order dated 19.12.2007 arising from Sessions Case No. 149 of 2007 passed by the Additional Sessions Judge, Fast Track Court No. 6, Ahmedabad is converted to conviction under Section 304 (Part I) of Indian Penal Code. However, the conviction of the appellants - original accused under section 452 of Indian Penal Code is upheld. The appellants - original accused are ordered to undergo rigorous imprisonment for a period of ten years and fine of Rs. 5000/- each in default rigorous imprisonment for six months under section 304 (Part I) of Indian Penal Code instead of life imprisonment and sentence in default of fine as awarded by the trial court under section 302 IPC. The sentence imposed in default of fine under section 452 IPC is also reduced to two months. Accordingly, the appellants are ordered to undergo rigorous imprisonment for a period of ten years and fine of Rs. 5000/-, in default, rigorous imprisonment for six months for offence punishable under section 304(I) of Indian Penal Code and rigorous imprisonment for a period of five years and fine of Rs. 2,000/-, in default, rigorous imprisonment for two months for offence punishable under section 452 of Indian Penal Code. Both sentences shall run concurrently. The judgement and order dated 19.12.2007 is modified accordingly. The period of sentence already undergone shall be considered for remission of sentence qua appellants - original accused. R & P to be sent back to the trial court forthwith."

23. In latest decision in [email protected] Khokhan (Supra) where the facts were similar to this case, the Apex Court has allowed the appeal of the accused appellant and altered the sentence. The decision of the Apex Court in the case of Anversinh v. State of Gujarat, (2021) 3 SCC 12 which was related to kidnapping from legal guardian, wherein it was established that the Court while respecting the concerns of both society and victim, propounded that the twin principle of deterrence and correction would be served by reducing the period of incarceration already undergone by the accused. In our case, this is not that gruesome matter where the accused cannot be dealt with in light of all these judgments. Decisions in Pravat Chandra Mohanty v. State of Odisha, (2021) 3 SCC 529 & Pardeshiram v. State of M.P., (2021) 3 SCC 238 will also enure for the benefit of the accused.

24. On overall scrutiny of the facts and circumstances of the present case coupled with the opinion of the Medical Officer and considering the principle laid down by the Apex Court in the Case of Tukaram and Ors Vs. State of Maharashtra, reported in (2011) 4 SCC 250 and in the case of B.N. Kavatakar and Another Vs. State of Karnataka, reported in 1994 SUPP (1) SCC 304, we are of the considered opinion that it was a case of homicidal death not amounting to murder.

25. From the upshot of the aforesaid discussions, it appears that the death caused by the accused was not premeditated, accused though had knowledge and intention that her act would cause bodily harm to the deceased but did not want to do away with the deceased. Hence the instant case falls under the Exceptions 1 and 4 to Section 300 of IPC. While considering Section 299 as reproduced herein above offence committed will fall under Section 304 Part-I as per the observations of the Apex Court in Veeran and others Vs. State of M.P. Decided, (2011) 5 SCR 300 which have to be also kept in mind.

26. We come to the definite conclusion that the death was due to septicemia. The precedents discussed by us would permit us to uphold our finding which we conclusively hold that the offence is not punishable under Section 302 of I.P.C. but is culpable homicide not amounting to murder, punishable U/s 304 (Part I) of I.P.C.

27. Therefore, accused-appellant, Alka, is punished under Section 304 (Part I) of IPC and sentenced to the period undergone. The fine is reduced to Rs.5,000/-. The fine if she has yet not deposited, will deposit the same within four weeks from the date of release from jail. The jail authority shall see that the accused-appellant is lodged in the jail to re-incarcerate for the default period if fine is not paid after she is released.

28. In view of the above, the criminal appeal is partly allowed.

Government Appeal No.2275 of 2017

29. As discussed above, this Government Appeal challenges the acquittal of Sanjiv Kumar, Rajiv Kumar & Rajendra Prasad.

30. In order the challenge the judgment of acquittal, learned A.G.A. for the state has submitted that the learned Sessions Judge has mistakenly disbelieved statements of the prosecution witnesses and without assigning any cogent reasons has disbelieved prosecution story. It is further submitted that the evidence on record and surrounding circumstances have not been properly appreciated by the Trial Court as far as acquittal of accused-respondents are concerned.

31. As against this, learned counsel for the respondents have submitted that judgment of the learned Sessions Judge is just and proper as no infirmity can be found in the finding given by the learned Sessions Judge. It is further submitted that this Court should go by the well settled principles concerning criminal appeal against acquittal and that the finding of the learned Sessions Judge are not so perverse as even in the dying declaration, nothing has been assigned against the present three acquitted respondents.

32. Before we embark on testimony and the judgment of the Court below, the contours for interfering in Criminal Appeals where accused has been held to be non guilty would require to be discussed.

33. The principles which would govern and regulate the hearing of an appeal by this Court, against an order of acquittal passed by the trial Court, have been very succinctly explained by the Apex Court in catena of decisions. In the case of "M.S. NARAYANA MENON @ MANI VS. STATE OF KERALA & ANR", (2006) 6 S.C.C. 39, the Apex Court has narrated the powers of the High Court in appeal against the order of acquittal. In para 54 of the decision, the Apex Court has observed as under:

"54. In any event the High Court entertained an appeal treating to be an appeal against acquittal, it was in fact exercising the revisional jurisdiction. Even while exercising an appellate power against a judgment of acquittal, the High Court should have borne in mind the well settled principles of law that where two view are possible, the appellate Court should not interfere with the finding of acquittal recorded by the Court below."

34. Further, in the case of "CHANDRAPPA Vs. STATE OF KARNATAKA", reported in (2007) 4 S.C.C. 415, the Apex Court laid down the following principles;

"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, re-appreciate 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 curtain extensive powers of an appellate Court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasis 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."

35. Thus, it is a settled principle that while exercising appellate powers, even if two reasonable views/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.

36. In the case titled "STATE OF GOA Vs. SANJAY THAKRAN & ANR.", reported in (2007) 3 S.C.C. 75, the Apex Court has reiterated the powers of the High Court in appeals against acquital. In para 16 of the said decision, the Court has observed as under:

"16. From the aforesaid decisions, it is apparent that while exercising the powers in appeal against the order of acquittal the Court of appeal would not ordinarily interfere with the order of acquittal unless the approach of the lower Court is vitiated by some manifest illegality and the conclusion arrived at would not be arrived at by any reasonable person and, therefore, the decision is to be characterized as perverse. Merely because two views are possible, the Court of appeal would not take the view which would upset the judgment delivered by the Court below. However, the appellate Court has a power to review the evidence if it is of the view that the conclusion arrived at by the Court below is perverse and the Court has committed a manifest error of law and ignored the material evidence on record. A duty is cast upon the appellate Court, in such circumstances, to re-appreciate the evidence to arrive to a just decision on the basis of material placed on record to find out whether any of the accused is connected with the commission of the crime he is charged with."

37. Similar principle has been laid down by the Apex Court in cases titled "STATE OF UTTAR PRADESH VS. RAM VEER SINGH & ORS.", 2007 A.I.R. S.C.W. 5553 and in "GIRJA PRASAD (DEAD) BY L.R.s VS. STATE OF MP", 2007 A.I.R. S.C.W. 5589. Thus, the powers, which this Court may exercise against an order of acquittal, are well settled.

38. In the case of "LUNA RAM VS. BHUPAT SINGH AND ORS.", reported in (2009) SCC 749, the Apex Court in para 10 and 11 has held as under:

"10. The High Court has noted that the prosecution version was not clearly believable. Some of the so called eye witnesses stated that the deceased died because his ankle was twisted by an accused. Others said that he was strangulated. It was the case of the prosecution that the injured witnesses were thrown out of the bus. The doctor who conducted the postmortem and examined the witnesses had categorically stated that it was not possible that somebody would throw a person out of the bus when it was in running condition.

11. Considering the parameters of appeal against the judgment of acquittal, we are not inclined to interfere in this appeal. The view of the High Court cannot be termed to be perverse and is a possible view on the evidence."

39. In a recent decision of the Apex Court in the case titled "MOOKKIAH AND ANR. VS. STATE, REP. BY THE INSPECTOR OF POLICE, TAMIL NADU", reported in AIR 2013 SC 321, the Apex Court in para 4 has held as under:

"4. It is not in dispute that the trial Court, on appreciation of oral and documentary evidence led in by the prosecution and defence, acquitted the accused in respect of the charges leveled against them. On appeal by the State, the High Court, by impugned order, reversed the said decision and convicted the accused under Section 302 read with Section 34 of IPC and awarded RI for life. Since counsel for the appellants very much emphasized that the High Court has exceeded its jurisdiction in upsetting the order of acquittal into conviction, let us analyze the scope and power of the High Court in an appeal filed against the order of acquittal. This Court in a series of decisions has repeatedly laid down that as the first appellate court the High Court, even while dealing with an appeal against acquittal, was also entitled, and obliged as well, to scan through and if need be reappreciate the entire evidence, though while hoosing to interfere only the court should find an absolute assurance of the guilt on the basis of the evidence on record and not merely because the High Court could take one more possible or a different view only. Except the above, where the matter of the extent and depth of consideration of the appeal is concerned, no distinctions or differences in approach are envisaged in dealing with an appeal as such merely because one was against conviction or the other against an acquittal. [Vide State of Rajasthan vs. Sohan Lal and Others, (2004) 5 SCC 573]"

40. It is also a settled legal position that in acquittal appeals, the appellate Court is not required to rewrite the judgment or to give fresh reasonings, when the reasons assigned by the Court below are found to be just and proper. Such principle is laid down by the Apex Court in the case of "STATE OF KARNATAKA VS. HEMAREDDY", AIR 1981 SC 1417, wherein it is held as under:

"...This Court has observed in Girija Nandini Devi V. Bigendra Nandini Choudhary (1967) 1 SCR 93:(AIR 1967 SC 1124) that it is not the duty of the Appellate Court on the evidence to repeat the narration of the evidence or to reiterate the reasons given by the trial Court expression of general agreement with the reasons given by the Court the decision of which is under appeal, will ordinarily suffice."

41. The Apex Court in "SHIVASHARANAPPA & ORS. VS. STATE OF KARNATAKA", JT 2013 (7) SC 66 has held as under:

"That appellate Court is empowered to reappreciate the entire evidence, though, certain other principles are also to be adhered to and it has to be kept in mind that acquittal results into double presumption of innocence."

42. Further, in the case of "STATE OF PUNJAB VS. MADAN MOHAN LAL VERMA", (2013) 14 SCC 153, the Apex Court has held as under:

"The law on the issue is well settled that demand of illegal gratification is sine qua non for constituting an offence under the 1988 Act. Mere recovery of tainted money is not sufficient to convict the accused when substantive evidence in the case is not reliable, unless there is evidence to prove payment of bribe or to show that the money was taken voluntarily as a bribe. Mere receipt of the amount by the accused is not sufficient to fasten guilt, in the absence of any evidence with regard to demand and acceptance of the amount as illegal gratification. Hence, the burden rests on the accused to displace the statutory presumption raised under Section 20 of the 1988 Act, by bringing on record evidence, either direct or circumstantial, to establish with reasonable probability, that the money was accepted by him, other than as a motive or reward as referred to in Section 7 of the 1988 Act. While invoking the provisions of Section 20 of the Act, the court is required to consider the explanation offered by the accused, if any, only on the touchstone of preponderance of probability and not on the touchstone of proof beyond all reasonable doubt. However, before the accused is called upon to explain how the amount in question was found in his possession, the foundational facts must be established by the prosecution. The complainant is an interested and partisan witness concerned with the success of the trap and his evidence must be tested in the same way as that of any other interested witness. In a proper case, the court may look for independent corroboration before convincing the accused person."

43. The Apex Court recently in Jayaswamy vs. State of Karnataka, (2018) 7 SCC 219, has laid down the powers of appellate court in re-appreciating the evidence in a case where the State has preferred an appeal against acquittal, which read as follows:

"10.It is by now well settled that the Appellate Court hearing the appeal filed against the judgment and order of acquittal will not overrule or otherwise disturb the Trial Court's acquittal if the Appellate Court does not find substantial and compelling reasons for doing so. If the Trial Court's conclusion with regard to the facts is palpably wrong; if the Trial Court's decision was based on erroneous view of law; if the Trial Court's judgment is likely to result in grave miscarriage of justice; if the entire approach of the Trial Court in dealing with the evidence was patently illegal; if the Trial Court judgment was manifestly unjust and unreasonable; and if the Trial Court has ignored the evidence or misread the material evidence or has ignored material documents like dying declaration/report of the ballistic expert etc. the same may be construed as substantial and compelling reasons and the first appellate court may interfere in the order of acquittl. However, if the view taken by the Trial Court while acquitting the accused is one of the possible views under the facts and circumstances of the case, the Appellate Court generally will not interfere with the order of acquittal particularly in the absence of the aforementioned factors.

.........................It is relevant to note the observations of this Court in the case of Ramanand Yadav vs. Prabhu Nath Jha & Ors., (2003) 12 SCC 606, which reads thus:

"21.There is no embargo on the appellate court reviewing the evidence upon which an order of acquittal is based. Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the appellate court to re-appreciate the evidence in a case where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused committed any offence or not."

44. The Apex Court recently in Shailendra Rajdev Pasvan v. State of Gujarat, (2020) 14 SC 750, has held that the appellate court is reversing the trial court's order of acquittal, it should give proper weight and consideration to the presumption of innocence in favour of accused, and to the principle that such a presumption sands reinforced, reaffirmed and strengthened by the trial court and in Samsul Haque v. State of Assam, (2019) 18 SCC 161 held that judgment of acquittal, where two views are possible, should not be set aside, even if view formed by appellate court may be a more probable one, interference with acquittal can only be justified when it is based on a perverse view.

45. We have perused the depositions of prosecution witnesses, documentary evidence supporting ocular versions, arguments advanced by learned counsel for the parties. We have also perused the findings recorded by the learned Sessions Judge.

46. While going through the finding of facts and even dying declaration which we have held is accepted under Section 32 of the Indian Evidence Act, name of only Alka was given by the deceased. There is no overt act perpetrated on any of the other accused and, therefore, we cannot agree with the submission of learned A.G.A. for the State that the judgment is perverse and requires to be upturned.

47. After considering the facts and circumstances of the present case and appraisal of the evidence available on record and on the contours of the judgment of the Apex Court, we have no other option but to concur with the judgment of acquittal by the the learned Sessions Judge.

48. The appeal sans merits and is dismissed. The record and proceedings be sent back to the Court below.

Order Date :- 26.9.2022

DKS