Allahabad High Court
State Of Up vs Luvkush S/O Haripal on 9 May, 2024
Author: Rahul Chaturvedi
Bench: Rahul Chaturvedi
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2024:AHC:83892-DB
Court No. - 67
Case :- GOVERNMENT APPEAL No. - 176 of 2024
Appellant :- State of U.P.
Respondent :- Luvkush S/O Haripal
Counsel for Appellant :- A. K. Sand
Hon'ble Rahul Chaturvedi,J.
Hon'ble Ms. Nand Prabha Shukla,J.
Re: Criminal Misc. Application (Leave to Appeal)
1. Heard Sri R.K. Rao, learned A.G.A. appearing for the appellant-State of U.P. at length and perused the record.
2. The present Government Appeal under Section 378(3) Cr.P.C. has been preferred against the impugned judgment and order dated 15.07.2023 passed by Additional Sessions Judge/Fast Track Court No.41 (Women) Kanpur Nagar while deciding the Session Trial No. 1253 of 2020 (State vs. Luvkush), arising out of Case Crime No.21/2020, under Sections 498-A, 304-B, 506 IPC and Section 3/4 Dowry Prohibition Act with section 302 IPC, Police Station Narval, District Kanpur Nagar whereby learned Trial Judge after holding the fact of the case, have acquitted the accused respondent Luvkush from the aforesaid charges in the aforesaid S.T.
3. Aggrieved by the aforesaid judgment and order, the present government appeal has been preferred by the State of U.P. invoking the powers under Section 378(3) Cr.P.C.
4. After hearing the learned A.G.A. we are proposing to decide this appeal at the admission stage itself.
5. As per the prosecution case, the informant is Smt. Chandrakali, mother of the deceased who lodged an FIR against his son-in-law Laukush, mother of Luvkush, Km. Seema and Km. Reema, Pawan and Shravan, son of maternal uncle of Luvkush (son of mama). As per allegation made in the FIR, on 14.02.2020, she got her daughter married with Luvkush after giving sufficient dowry and cash of Rs.72,000/-, one tola finger ring, one tola gold chain and other items worth of Rs.1,00,000/- but there was a demand of four wheeler, failing which her daughter was eliminating on 21.02.2020 by Luvkush and his mother and sisters Seema and Reema and his cousin brother Shravan by throttling her neck. She has received an information in the mid night at 2:00 am that her daughter Manvi @ Rajdulari was killed by the named accused persons.
6. After lodging of the FIR, the Police started investigation in the matter and have recorded the statements of the witnesses under section 161 Cr.P.C. and collected the material and submitted the charge sheet under Sections 498-A, 304-B, 506 IPC and 3/4 D.P. Act, only against named accused Luvkush dropping other named accused persons.
7. Being a cognizable offence, the case was committed to the Court of Sessions whereby the charges were framed under Sections 498-A, 304-B, 506 IPC and Section 302 IPC with the charges under Section 302 IPC.
8. After lodging of the FIR, the investigation of the case was started rolling and was done by the Investigating Officer to file report against the accused.
9. As many as 8 prosecution witnesses were examined in support of prosecution case and as many as 11 documents were exhibited during trial.
10. Before coming to the merits of the case, in the statement recorded under Section 313 Cr.P.C., the accused confessed before the Court that he got married with the deceased Manvi @ Rajdulari out of love marriage and marriage was solemnized on 14.02.2020. Vidai of the bride was taken on 15.02.2020 and thereafter his wife went to her maika on 16.02.2020. After coming back from her maika on 18.02.2020 this unfortunate incident has taken place on 21.02.2020. Thus, out of one week in which she remained in her maternal home (maika) for three good days and in her matrimonial house (sasural) for four good days, this unfortunate incident has taken place.
11. Yet under aspect of the issue that the husband is a street vender where he parked his dhela of laiya chana and it is unthinkable that a person who parked his dhela and selling eatable items for munching will demand for four wheeler. From the allegation made in the FIR, the articles given by the first informant and evaluating the same, it seems that both the parties belong to lower middle class in which they are busy in earning day to day bread and butter and they cannot think about purchasing of a four wheeler. Demand of dowry must commensurate from social economic conditions of both the parties. We are observing that now a day, that irrespective of the financial conditions, there is exorbited demand in the FIR just to make a grim look to the matter.
12. Coming to the fact of the case, the witnesses of fact, P.W.1, Chandrakali and P.W.2 Suraj, the brother of the deceased though retrieated the version of the FIR but in their cross-examination, it is clear that entire prosecution story is set up by them. From the record it has come out that in the mid night of the alleged incident, some miscreants got entered into the house of the accused appellants in order to commit theft and in his scuffle, these miscreants have strangulated the neck of the deceased and therefore, she has sustained three ante mortem injuries over her person. Injuries are on right side of chick and in the right side of shoulder and over her neck. As per opinion of the Doctor, she died on account of Asphyxia by throttling as her hyoid bone was found fracture except there was no other injury on the body of the deceased.
13. We have to keep in mind that this unfortunate incident has taken place within four actual days of respondent's marriage whereby she was eliminated by throttling her neck.
14. The Hon'ble Apex Court in Shanti vs. State of Haryana, AIR 1991 SC 1226 and Panchanand Mandal vs. State of Jharkhand (2013) 9 SCC 800, has pointed out certain essential ingredients for attracting Section 304B IPC, which reads thus:
"(i) The woman died unnaturally or on account of burn injury or bodily injury.
(ii) The woman died within seven years of her marriage.
(iii) The woman was subjected to harassment by her husband or relatives of husband.
(iv) Such harassment or cruelty was due to demand of dowry.
(v) Such cruelty or harassment was done which the woman fsoon before her death."
15. In paragraph-25 of the judgment, P.W.1 Chandrakali, the first informant in her cross-examination has stated as under :
"वह पढी लिखी नहीं है। तहरीर देखकर बताया कि एफ.आई.आर. किसने लिखी मैं नहीं जानती। मेरी पुत्री मानवी उर्फ राजदुलारी के पति लवकुश, सास विमला, नंद सीमा, रीमा,देवर पवन व श्रवण ने कभी भी मुझसे मेरी बेटी से न दहेज की मांग की और न मेरी बेटी के साथ मारपीट की। दरोगा जी ने उसका कोई बयान नहीं लिया था। मेरी बेटी को किसने मारा, उसको मैंने नहीं देखा। मेरी बेटी के साथ उसके ससुराल में कोई मारपीट नहीं हुयी न कोई घटना कारित की गयी। इससे पहले कोई शिकायती प्रार्थना पत्र लवकुश व उसके ससुरालवालों के विरूद्ध कभी नहीं दिया। इस तहरीर में क्या लिखा है, लिखने वाले ने हमें पढकर नहीं सुनाया। मैं नहीं जानती कि तहरीर में क्या लिखा था। मैंने तहरीर में अंगूठा निशान लगाया था। तहरीर किसने लिखी मैं नहीं जानती। मैंने अपनी बेटी को कभी किसी के घटना के पहले या घटना वाले दिन दिन मारते पीटते नहीं देखा।"
16. Therefore from the aforesaid paragraph, it is clear that she has categorically denied the allegation of demanding any additional dowry. She states that she has put her thump impression over the application but she is unaware of its contents. She has denied from the any allegation of committing marpeet.
17. P.W.2 Suraj, the brother of the deceased in paragraph-31 of the judgment too has changed his stance by stating that :
" घटना की दिनांक को मेरी बहन के घर में चोर आया था। चूंकि मेरी बहन की नई-नई शादी हुयी थी, जेवर आदि घर में मौजूद था, जिसको चोरी करने चोर आया था। मेरी बहन ने चोर का विरोध किया, उसी चोर ने मेरी बहन मानवी उर्फ राजदुलारी को मार दिया था। मेरी बहन के ससुरालीजन व मेरे बहनोई लवकुश ने मेरे सामने कभी न दहेज की मांग की न गाल-गलौज की न कार की मांग की और न ही कभी मारपीट की। मेरी बहन ने कभी हमें यह नहीं बताया कि उसके ससुराल वाले दहेज की मांग करते है और उसे प्रताडित करते है। मेरी बहन को किसने मारा मुझे नहीं मालूम। मैं घटना के समय मौके पर नहीं था।"
18. Therefore, taking into account the totality of the circumstances of the case and essential material on record, learned Trial Judge has rightly come to the conclusion in acquitting the accused respondent under the aforesaid sections.
18. After hearing learned A.G.A. and considering the opinion that the judgment and order which is under the judicial scrutiny, is perfect, just and suffer from no voice of any legal impediment.
19. Learned Trial Judge after critically examined all the relevant aspects of the issue, has come to correct conclusion that the prosecution has failed to establish his case within the four corners of Section 304B IPC and thus rightly, acquitted the accused respondent from the charges.
20. Before proceeding further, it would be appropriate to take note of laws on the appeal against acquittal:-
(i) 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 re-appreciated 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."
(ii) 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.
(iii) 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.
(iv) Similar view has been reiterated by Hon'ble Apex Court in Rajesh Prasad vs. State of Bihar and another, (2022) 3 SCC 471.
(v) Since, it is a Government Appeal against the acquittal, it will be relevant to note the principles of law laid down by the Apex Court with regard to the appreciation of evidence in the appeal against the acquittal. Recently, in the case of Mallapa and others Vs. State of Karnataka , the Apex Court has held as under :-
"36. Our criminal jurisprudence is essentially based on the promise that no innocent shall be condemned as guilty. All the safeguards and the jurisprudential values of criminal law, are intended to prevent any failure of justice. The principles which come into play while deciding an appeal from acquittal could be summarized as:
(i) Appreciation of evidence is the core element of a criminal trial and such appreciation must be comprehensive ? inclusive of all evidence, oral or documentary;
(ii) Partial or selective appreciation of evidence may result in a miscarriage of justice and is in itself a ground of challenge;
(iii) If the Court, after appreciation of evidence, finds that two views are possible, the one in favour of the accused shall ordinarily be followed;
(iv) If the view of the Trial Court is a legally plausible view, mere possibility of a contrary view shall not justify the reversal of acquittal;
(v) If the appellate Court is inclined to reverse the acquittal in appeal on a re-appreciation of evidence, it must specifically address all the reasons given by the Trial Court for acquittal and must cover all the facts;
(vi) In a case of reversal from acquittal to conviction, the appellate Court must demonstrate an illegality, perversity or error of law or fact in the decision of the Trial Court."
21. We are of the considered opinion that the reasoning adopted by the learned Trial Judge is sound and firm footed and has taken a plausible and possible view of the matter on appreciation of entire evidence on record, which cannot be substituted by this Court by taking a different view as per the law discussed above.
22. Accordingly, 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.
Order Date :- 9.5.2024
Monika
